Vithoba Shivram Gavit And Ors vs The State Of Maharashtra Thr The ...
2023 Latest Caselaw 4313 Bom

                                                                           P4-ASWPST-12200-2023.DOC




                       Shephali



                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         CIVIL APPELLATE JURISDICTION
                                      WRIT PETITION (ST) NO. 12200 OF 2023

                       Vithoba Shivram Gavit & Ors                                       ...Petitioners
                              Versus
                       State of Maharashtra & Anr                                      ...Respondents


                       Mr Kishore Patil, i/b Pradeep S Gole, for the Petitioner.


                                                     CORAM      G.S. Patel &
                                                                Neela Gokhale, JJ.

                                                     DATED:     27th April 2023
                       PC:-

1. Not on board. Mentioned. Taken on board. SHEPHALI SANJAY MORMARE Digitally signed by SHEPHALI SANJAY MORMARE

2. We passed an order on 13th April 2023 in Writ Petition No. Date: 2023.04.27 17:15:40 +0530 3672 of 2023. It reads thus:

"1. The Petitioners are correct in saying that the transfers especially in the context of hardship areas are not done in accordance with law. The Petition points out that there is not only a Government Resolution ("GR") (paragraph 10) but also three decisions, one of a Division Bench of the Principal Seat and two of Division Benches in Aurangabad which address the issue of transfers of teachers at various schools in various Zilla Parishads. The present Petitioners are

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Assistant Teachers at various places in primary schools, high schools, girl's primary schools all run by the Zilla Parishad Raigad. The issue is of transfers to what are called hardship postings or hard postings, i.e., those that are difficult to access and are beyond a certain distance.

2. The Petitioners do not say that their posts are not transferable. In fact, the Petition accepts that these are transferable jobs. They also do not say that they must compulsorily be transferred to any one place. But the Petitioners' contentions are under two broad heads. First, that in deciding any programme of transfers the provisions of the GR in question mentioned specifically in paragraph 10 and dated 7th April 2021 at Exhibit H must be kept in mind along with the judgments of the High Court. While these judgments are not prescriptive, they certainly indicate clearly what is impermissible.

3. The second submission is that the Petitioners' names were included on what we will call a 2022 Transfer List. This was never implemented, although, according to Mr Bandiwadekar, it was otherwise an unexceptionable list. Instead, the Petitioners found their names included in a 2023 Transfer List, which took the form of a revised list and for no reason that anyone can tell included all names from the 2022 unimplemented List. But the revised list did not take into account the GR and the judgments that we have referred to earlier.

4. There is no doubt that the issue of routine or general periodic transfers whether annual or otherwise

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is an extremely complex business. The larger the body of people who have to be transferred, the greater the complexity. There are many factors that have to be borne in mind including whether the employee's spouse or partner or family member is unwell and requires constant medical attention, the distance from the home place to the post of transfer, the ages of school going children and whether they are in their final years of school or college requiring parental support at that time, the age of the employee itself (whether above 53 years or not) and several other similar factors. There are also known cases where by one means or another an employee has managed to remain in one place for years together without a transfer and which is equally impermissible from the Government's perspective. All these factors have to be correctly balanced and weighed. It is true and the Petitioners accept this that not every employee is going to get an optimal post with every transfer. Perfection is not the objective of this pursuit. But equally it is clear that the best cannot ever be allowed to become the enemy of the good and what this requires therefore is a careful application of the relevant policies and the law.

5. It seems that in the 2023 List preparation, the work of deciding the transfers has been outsourced to a third party agency. We have nothing against outsourcing per se, but in this process, while this agency was perhaps running some sort of computerized algorithm, the specifications for developing the necessary software or application did not sufficiently factor in the GR or the effect of the

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judgments of this Court. We are not shown that the factors that we have mentioned above have also been adequately taken into account with appropriate weightage while making this list.

6. There are 272 Petitioners at present. As if that is not enough, Mr Bandiwadekar seeks leave to amend to add even more. We grant him that leave. There are now 21 more who have entered the fray. So be it. But this only means that the Government now has a bigger problem than that which might have been presented by an individual complaining about a transfer. This is the material point of distinction. At the instance of a single Petitioner, we might have not been inclined to interfere because every individual must subject himself to the general discipline of a transferable Government service. But how that transfer is to be effected is undoubtedly guided by law.

7. Now if we turn to the GR, a copy of which is at page 118, the relevant portion starts from page 119 and item 1.1 is specifically in the context of what is called vo?kM {ks= or a difficult or hardship area. Item 1.5 deals with teachers and provides a definition. Then item 2.1 deals with the need for a declaration of intra-district difficult areas. The GR overall requires the declaration and disclosure of what are difficult areas. This is obviously intended so that those liable to transfer can indicate preferences and so that difficult areas are not matters left to the imagination or fancy of an individual but are made known to all equally. Clause (3) at pages 123 and 124 provides for a preference to be obtained from teachers. At this stage, the details of this are not material. We are only dealing with the

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overall scheme of the GR in question. Clause (4) from page 124 speaks of the stages to be followed while effecting transfers. This goes through several iterations and the stages are set out from Stage 1 to Stage 6 until page 127/128. A complaints mechanism and miscellaneous matters are provided in Clause (5) as well.

8. The 2023 List does not indicate and we are not presently shown how it does if indeed it does that this GR was taken into account.

9. A brief background to the policy of intra-district transfers of primary teachers within a Zilla Parishad is provided in the Petition. A new policy came in 2017. A challenge to this failed before this Court in a Writ Petition. There followed modifications to the original GR and these were again challenged. Portions of the revisions were found by this Court to be arbitrary and unreasonable. There was a clarificatory GR of 8th March 2021 and a Circular of 20th January 2019 seeking to further implement the 2017 Policy. Aggrieved by this, certain teachers filed Writ Petition No. 5060 of 2018 and Writ Petition No. 5082 of 2018 before the Aurangabad Bench of this Court. The 2017 Policy was never actually fully implemented and ultimately stood substituted by a GR of 28th January 2019 and ultimately 7th April 2021 which is the one that we referred to above. The 2021 GR supersedes all previous GRs.

10. If this GR now encapsulates the concept of an vo?kM {ks= or difficult area, preference and other factors

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then it must be shown how this has been taken into account in the 2023 Transfer List.

11. With the material currently available on record we are unable to see how this can be said to have been done. Mr Gavanekar is for the Zilla Parishad. He may be correct in saying that the preparation of the Transfer List and the outsourcing is done by the Government of Maharashtra and not the Zilla Parishad. We will require an explanation from the Zilla Parishad and the Government. We leave it open to the Government to state that with these observations that we have made today and taking into account these factors that it will on priority basis and within a reasonable period of time rework the present 2023 List. We do not insist that this be done. It is always open to the Respondents to say that the present List can be justified and we leave contentions open in that regard. However, this does mean, in view of the prima facie findings that we have returned that interim relief is required to be given to the Petitioners.

12. The present transfers will not be effected as regards these Petitioners. The Affidavits in Reply are to be filed and served by 4th May 2023. A Rejoinder, if any, is to be filed by 26th May 2023. We list the Petition peremptorily high on board on 7th June 2023.

13. Leave to amend without need of reverification. Mr Gavanekar expresses an apprehension that several thousand others will seek the same relief. That does not matter.

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14. Leave to amend to add the outsourcing agency as also the Agency which has been sub-contracted to prepare a list in question. Consequential amendments shall also be carried out. Amendments to be carried out by 26th April 2023 without need of reverification. Hamdast allowed for service on the newly added Respondent. Notice to be issued. In addition to service through court, private service, including by email and courier, is permitted."

3. The present Petition is identical and covers the same situation but in respect of other Petitioners. We will pass the same order and club both matters together. Accordingly, in the present matter, the present transfers will not be effected.

4. All Affidavits are to be filed and served on 12th May 2023. Rejoinders, if any, to be filed and served on or before 26th May 2023.

5. List the present matter along with Writ Petition No. 3672 of 2023 on 17th June 2023.

 (Neela Gokhale, J)                                        (G. S. Patel, J)





                               27th April 2023