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Judgment
Sunil B. Shukre, J
Heard. Admit. Heard finally by consent of parties.
Respondent no. 1 in Contempt Petition No. 147 of 2019 has sought review of final order passed in the said contempt petition on 10th June 2019.
Shri Sunil Manohar, learned Senior Advocate for the applicant submits that the order dated 10th June 2019 needs a reÂlook for more than one
reason. He submits that by the order dated 10th June 2019, what was not granted in original petition (WP No. 4190 of 2018), has been given to the
petitioners and it is not permissible in law. He further submits that there is a conflict between the order dated 10th June 2019 and the original judgment
dated 22nd February 2019 rendered in WP No. 4190 of 2018 which was the root cause of the contempt petition, at least according to the petitioners.
He points out that the judgment dated 22nd February 2019 mandates the State Government to adhere to the transfer policy dated 27th February 2017
as amended from time to time, scrupulously, consciously and in letter and spirit and to see that at no stage of the transfer process, parameters
prescribed for effecting the transfers are transgressed. He submits that order dated 10th June 2019 makes it impossible to adhere to the transfer
policy as it directs the State Government to first process the claims of the eligible teachers i.e. present petitioners in current transfer process and then
embark upon processing the claims of all other eligible teachers in the current transfer process. He submits that the transfer policy dated 27th
February 2017 creates four categories of teachers and requests made by the teachers falling in these categories are required to be processed as per
the order of precedence prescribed in the transfer policy dated 27th February 2017 and, therefore, if the claims of these petitioners are considered
separately from these categories, the transfer policy will stand violated. He also submits that whenever there is mistake apparent on the face of the
order, it constitutes sufficient cause for its review.
Shri S. P. Dharmadhikari, learned Senior Advocate appearing for the original petitioners objects to the submissions made on behalf of the applicant.
He argues that the order dated 10th June 2019 does not provide for anything new and it only explains what is already done in the judgment dated 22nd
February 2019, an exercise permissible in law. He further submits that the order dated 10th June 2019 also does not stand in conflict with the transfer
policy dated 27th February 2017 and this policy itself makes a provision for giving precedence to the orders of the Court over and above the claims of
the eligible teachers and as such, in implementing the order dated 10th June 2019 what shall happen, is not the violation of the transfer policy, but
giving effect to it, consciously and in letter and spirit.
In order to appreciate the rival arguments, we think it necessary to reproduce the relevant operative portions of the judgment and order dated 22nd
February 2019 and the order dated 10th June 2019 rendered by this Court. Paragraphs 14 and 15 of the judgment dated 22nd February 2019, which
are relevant for the present purpose, read thus:
“14. The question would then arise as to whether or not it would be proper for this Court to make any interference at this stage with the transfer
orders having been already implemented. Once it is found that there is great substance in the grievances raised by the petitioners, ordinarily speaking,
quashing of the transfer orders would have to be made. But, today we are in the month of February 2019. The transfer orders have also been
implemented quite a long time ago. So, any interference made now would only affect the education of pupils. As such, we do not think that it would be
appropriate for this Court to make any interference in the transfer orders at this belated stage. Learned Senior Advocate has also submitted his
argument in similar vein at the outset itself. But, at the same time, finding substance in the grievances raised here, we deem it necessary to issue
certain directions to the respondents so that in future, as far as possible, the complaints arising from the perceived breaches of transfer policy are
minimized.
In view of above, we direct the respondents to adhere to the transfer policy dated 27.2.2017 as amended from time to time scrupulously,
consciously and in letter and spirit and to see that at no stage of the transfer process, the Authority shall ignore the parameters of any of the steps
contemplated in the transfer policy, subject to workability of the preferences. It is directed that the grievances of all the petitioners in which we find
substance, shall be taken into account by the respondents while undertaking the next transfer process due for May 2019.â€
Paragraphs 3rd and 4th from the order dated 10th June 2019 are relevant and they are reproduced as under:
“By the order passed by this Court on 22nd February, 2019 in the main petition being writ petition No. 4190/2018, this Court having found
substance in the grievances of these petitioners had directed the authorities to take into account the grievances while undertaking the current transfer
process 2019. At the same time, this Court also directed the respondents to adhere to the transfer policy dated 27.2.2017 as amended from time to
time, subject to the workability of the preferences. The overall effect of these directions is that these petitioners would have to be allowed to take part
in the current transfer process 2019 along with all other eligible teachers, but while processing the claims or options for different places of all the
teachers, priority to the claims of these teacher would have to be given.
At this stage Shri Paunikar, learned counsel for the respondent no. 2 informs, on instructions, that the petitioner is already allowed to fill up the options
and thus take part in the current transfer process 2019. He invites our attention to the averments made in the reply filed on behalf of the respondent
No. 2 in this regard. If the petitioner has been allowed to take part in current transfer process 2019, we hope and trust that the claims of all these
petitioners would be processed first while processing the claims made by all the eligible teachers in current transfer process and after processing
claims of all these teachers that the claims of other eligible teachers would be considered and this would be done by the respondents in accordance
with the guidelines contained in the transfer process, in terms of the directions given by this Court on 22nd February, 2019 in Writ Petition No.
4190/2018.â€
A reading of the above parts of orders would make it clear that this Court has not granted anything new to the petitioners or has not issued any new
direction which was not contained in the original judgment dated 22nd February 2019. All that this Court has done is to clarify that these petitioners
would have to be allowed to take part in the current transfer process; the claims of all these petitioners would be processed first while processing the
claims made by all the eligible teachers and those claims would also be considered. This Court, in order to clarify the matter only said that priority to
the claims of the present petitioners be given. By saying so, this Court never dictated that four categories mentioned in the transfer policy dated 27th
February 2017 should be ignored and this Court also never said that the order in which the claims of respective teachers falling in each of these
categories not be processed and considered in terms of the guidelines contained in the transfer policy dated 27th February 2017. By this clarification,
this Court only meant that these petitioners be put in one or the other category along with the other eligible teachers and then in that respective
category, preference be given to these petitioners visÂaÂvis the other eligible teachers in current transfer process and nothing beyond that. This
Court, as rightly submitted by Shri Dharmadhikari, has passed the order on the basis of the principle of “first amongst equals†and keeping in view
the minimum legitimate expectation of the petitioners and so there is no conflict as well.
About what is argued on crossing the limits of contempt jurisdiction by this Court, we must say the law is well settled on the proscriptions and
prescriptions for granting relief in contempt jurisdiction and this Court being conscious of it, is aware that it cannot grant relief in contempt jurisdiction
which is beyond the relief granted in the writ proceeding as held by the Hon'ble Apex Court in the case of Director General, Youth Services And
Sports Department & ors v. Sanjay Gupta & ors reported in (2017) 4 SCC 571. But, as stated earlier, this Court has not granted any relief which is
beyond the relief granted in the writ petition and as such, the principle of law can be said to have found it's expression in the order sought to be
reviewed.
It has also been argued on behalf of the review applicant that the order dated 10th June 2019 cannot be implemented as its implementation will
result in breach of the transfer policy and also the violation of the directions of this Court given in its judgment dated 22nd February 2019.
We have already clarified as to how there is no conflict between the directions contained in the judgment dated 22nd February 2019 and the order
dated 10th June 2019 and so the argument comes without any basis. At this juncture, we find the reliance placed by learned Senior Advocate
appearing for respondents/original petitioners on Clause (V) (5) dealing with other policy matters contained in the transfer policy dated 27th February
2019 as worth taking note of. The policy is in Marathi and its English translation has not been filed on record. Therefore, we would like to reproduce
the clause (V), (5) in it's original form using Marathi language and it is as follows :Â
.
“5) . ,
.
â€
The direction contained in the aforeÂstated subÂclause only shows that the Competent Authority entrusted with the task of effecting the annual
general transfers must give priority first to the implementation of the order or direction of the Court and after ensuring to make compliance with the
direction of the Court, the Competent Authority has been enjoined to initiate action for effecting intraÂdistrict transfers in terms of the transfer policy
dated 27th February 2017.
The mandate of subÂclause (5) is loud and clear. The directions of the Court are required to be first implemented and then only the exercise of
effecting intraÂdistrict transfer by the Competent Authority is permitted. The judgment dated 22nd February 2019 precisely directs the same when it
prescribes that all the guidelines contained in the transfer policy dated 27th February 2017 be adhered to and followed scrupulously, in letter and spirit
and consciously. So, where is the question of arising of a conflict between the directions given in the order dated 10th June 2019 and the directions
contained in the judgment dated 22nd February 2019 ? The judgment dated 22nd February 2019 has attained finality, and it stands in no conflict with
order dated 10th June 2019, and so must be respected by all parties to it for all that it vouches for. Else, an eyesore like conflict would arise with
subÂclause (5) of clause (V) of transfer policy dated 27th February 2017. The order dated 10th June 2019 is an order issued only to ensure faithful
implementation of the directions given by its Court in it's judgment dated 22nd February 2019, and we must clarify, it is permissible in law. For this
conclusion, we would like to draw support from the law laid down by the Hon'ble Apex Court in the case of Kshiti Goswami & ors v. Subrata Kundu
& ors reported in (2013) 11 SCC 618.
The discussion thus far made would show that there is no apparent mistake committed by this Court in issuing the order dated 10th June 2019 and
as such, there is no need to recall the order. Had there been any mistake manifest on record, it would have constituted a valid reason to recall the
order as held in the case of M. Shankaraih & anr v. State of Karnataka reported in 1993 Supp. (4) SCC 596, but that is not the case here.
Inspite of all said and done, just to leave no room for any confusion, we would like to take this opportunity to issue a further clarification. We have
been informed by learned Senior Advocate appearing for original petitioners that now, grievances of only nineteen petitioners, as per the list submitted
by him today, which is taken on record and marked “X†for identification, have remained to be addressed appropriately in the current transfer
process and so we feel, an appropriate clarification should serve the interests of justice.
Accordingly, we clarify that the guidelines contained in the transfer policy dated 27th February 2017 shall be adhered to scrupulously and in terms
of the judgment dated 22nd February 2019 and in doing so, the claims of nineteen original petitioners as per the list “X†shall be categorized as per
their eligibility and they be placed in one of the applicable categories mentioned in the transfer policy dated 27th February 2017 and thereafter in the
respective categories, to the claims of these petitioners, preference qua the other claimants in the same categories shall be given and postings given on
the basis of the principle “first amongst the equalsâ€.
Review application is disposed of accordingly. No costs.
Authenticated copy of this judgment along with list marked “X†be supplied to both sides.