Research › Search › Judgment

Bombay High Court · body

2019 DIGILAW 506 (BOM)

BANDU BHAUJI SIDAM v. STATE OF MAHARASHTRA

2019-02-22

S.M.MODAK, SUNIL B.SHUKRE

body2019
JUDGMENT : Sunil B. Shukre, J. 1. Heard. Rule. Heard forthwith by consent of parties. 2. A large number of teachers adversely affected by the action of both the respondents in not properly implementing the transfer policy as enunciated in the Government Resolution dated 27-2-2017 which has been amended subsequently on 15th April 2017 and 31st May 2017, have filed the present writ petition. These teachers comprise 68 in number. 3. Shri S.P. Dharmadhikari, learned Senior Advocate appearing for the petitioners, at the outset, submits that the petition was filed in 2nd week of July 2018 and there was no interim stay granted by this Court and, therefore, the concerned teachers have joined their respective places of transfer. He submits that the petitioners will be interested in ensuring that in future while effecting the transfers as per the transfer policy, no injustice is caused to them or any of the similarly circumstanced teachers of Zilla Parishad and that the transfer policy is implemented scrupulously and in letter and spirit. 4. Shri Dharmadhikari has taken us through each and every clause of transfer policy and demonstrated by making specific reference to the causes of some of the petitioners as to how blatently this policy has been violated by the respondents. Shri Paunikar, learned counsel for respondent no. 2 Zilla Parishad submits that the transfers have been effected through on-line process carried out and completed through online portal of the Rural Development Department and, therefore, respondent no. 2 has virtually no say in the matter of transfer and as a matter of fact, respondent no. 2 has done nothing in this case. He submits that as the transfers have been made through on-line process, the transparency of the process is writ large and cannot be questioned by anybody. He also submits that even then if some justifiable grievances are raised, they would be taken care of appropriately at the time of next transfer process that would be initiated around 31st May 2019. He also submits that alternate remedy is available to the petitioners for redressal of their grievance. 5. As regards the availability of alternate remedy for which reliance has been placed by learned counsel for respondent no. He also submits that alternate remedy is available to the petitioners for redressal of their grievance. 5. As regards the availability of alternate remedy for which reliance has been placed by learned counsel for respondent no. 2 upon the common judgment of this Court in Sau Sunita Onkar Lawhale & ors v. State of Maharashtra & ors (WP No. 3453 of 2011) with Smt Padma Wamanrao Hadole v. State of Maharashtra & ors (WP No. 3729 of 2011), decided on 18th August 2011 and another common judgment delivered in Writ Petition No. 4467 of 2018 and other companion petitions, delivered on 27th August 2018, we must say, as rightly pointed out by learned Senior Advocate, that order of this Court dated 18th December 2018 provides answer to the same. 6. When the matter was listed on 18th December 2018, this Court directed respondent no. 2 to consider the grievances in respect of violation of the guidelines/circulars/Government Resolutions for transfer of the employees. Respondent no. 2 was granted liberty to call individual aggrieved employee and try to sort out the problem in the light of the policy laid down by the State Government. From the pursis dated 15-1-2019 filed on behalf of respondent no. 2, it becomes clear that all these petitioners were given hearing by respondent no. 1 and their requests have been rejected. Of course, the remedy as per the provisions of rules 13 and 14 of the Maharashtra Zilla Parishad District Services (Discipline and Appeal) Rules, 1964 lies before the Divisional Commissioner. In this case, the representations have been rejected by the Chief Executive Officer. But, it has been done in pursuance of the order of this Court dated 18th December 2018 and, therefore, we are of the considered view that there is substantial compliance by the petitioners with the amended provision of the transfer policy and provisions of rules 13 and 14 regarding making of representation to the Authority prescribed therein for redressal of any grievance arising from the issuance of transfer order. This would indicate that now the issue of alternate remedy has come to an end for all purposes and, therefore, we have to examine as to whether or not there is substance in the grievances raised in this petition. 7. This would indicate that now the issue of alternate remedy has come to an end for all purposes and, therefore, we have to examine as to whether or not there is substance in the grievances raised in this petition. 7. Transfer policy dated 27-2-2017 along with the amendments effected to it subsequently, discloses that the policy is comprehensive and the object of the policy is to strike balance between administrative needs and the difficulties of the individuals. While striking such balance, the transfer policy takes into consideration large number of posts, nature of work performed by the teachers which is different than other cadres etc. That is why the transfer policy divides the areas broadly into two categories viz. Difficult area and Ordinary area. These areas have been precisely defined in paragraph 2 of the Government resolution. The cutoff date for considering a teacher as due or not due for transfer is also specified and it is 31st May of every year. The definition clauses also define such terms as “Teacher”, “Competent Authority”, “Teacher entitled to seek transfer”, “Special category teachers, Part-I”, “Special category teachers, Part-II” and “Teachers liable for transfer”. The transfer policy places onerous responsibility on the shoulders of the Chief Executive Officers in categorizing the areas into difficult area and ordinary area and also to identify various categories of the teachers covered under the policy. 8. After completion of the initial exercise as prescribed in the transfer policy, further responsibility has been given to the Chief Executive Officer. This responsibility relates to making a declaration by the Chief Executive Officer regarding taluqa-wise difficult areas in the district and ordinary areas in the district and school-wise vacant posts. He has to then publish the list of teachers and invite options from the teachers eligible for transfer. All this has to be done in a stage-wise manner prescribed in the transfer policy. 9. After completion of afore-stated exercise, there comes 1st stage of the transfer process and this stage, as mentioned in the transfer policy, is about the procedure to to be adopted in the matter of transfers. The procedure comprises in all six steps, with each step mentioned in Marathi as “Tappa”. 9. After completion of afore-stated exercise, there comes 1st stage of the transfer process and this stage, as mentioned in the transfer policy, is about the procedure to to be adopted in the matter of transfers. The procedure comprises in all six steps, with each step mentioned in Marathi as “Tappa”. Here also, a careful reading of the transfer policy would disclose that it is not permissible for the Competent Authority to straight away come to latter step without considering and taking decision in respect of the previous step and that would mean, the Chief Executive Officer/Competent Authority cannot straight way follow step no. 4 without completing first the three prior steps mentioned in the transfer policy. 10. A careful reading of the policy further discloses that all the stages and also the steps prescribed thereunder must be followed scrupulously by the Chief Executive Officer or the authority competent to transfer the teachers working in Zilla Parishad schools and this is to be done stage-wise and step-wise, without bypassing any of the stages or steps. A fair idea about this can be had from the structure in which the Government Resolution has been framed. This structure does not allow the authority to jump to any further stage or step without first following the preceding stages or steps. It also shows that it considers the contingencies that ordinarily arise while making transfers and so various provisions to deal with these contingencies are made. 11. The details provided in this structured Government Resolution are also indicative of the purpose of the policy. It is to maintain transparency in undertaking the transfer process so that, as far as possible, no scope would be left for making any grievance by any of the teachers under transfer. This would be clearly visible from the manner in which the stages are contemplated and prescribed and the way each of the stages has been regulated for its compliance in the transfer policy. Several details are given at each stage and they are indicative of the fact that a minute care has been taken by the Rural Development Department in making the transfer policy just as well as transparent. 12. A policy is a document which systemises the abstract provisions to guide the authorities to make decisions and achieve rational outcomes. Several details are given at each stage and they are indicative of the fact that a minute care has been taken by the Rural Development Department in making the transfer policy just as well as transparent. 12. A policy is a document which systemises the abstract provisions to guide the authorities to make decisions and achieve rational outcomes. We find that the transfer policy in this case being a logically structured document, it facilitates the authority to reach a subjective satisfaction based on concrete material offering objective criterion, as regards transfers to be made, in a reasonable manner. As stated earlier, the purpose is to strike balance between administration and individual needs of the teachers so that the teachers do not keep sulking or remain unhappy because of their perception of an administrative action not respecting or honouring their preferred places while effecting their transfers. Ultimately, an employee possessed of proper balance of mind and state of happiness is one of the important parameters of any good administration. Timely redressal of grievances or removal of difficulties of the employees would lead to nothing but enhancing the quality of administration of Zilla Parishad schools and that would surely contribute to improved quality of education imparted in Zila Parishad schools. All this would underline the importance of the Government Resolution and the need for following it scrupulously. Of course, this being a policy, the implementation thereof in a strict manner would also depend upon the workability of proposal made or any preferences given by an employee in a given case and it is in this sense only that we have said that the policy be scrupulously followed. 13. Having considered the nature of transfer policy, now let us turn to the grievances raised in this petition. Pursuant to the order of this Court dated 5-1-2019, the Education Officer (Primary) granted personal hearing to the aggrieved teachers. Minutes of the hearing are placed on record by respondent no. 2 below pursis dated 15-1-2019. It is seen that the teachers from sr. nos. 1 to 35 have common grievance relating to husband-wife unification. They say, their spouses are posted at a distance ranging from 30 kms. to 400 kms. They pray that husband-wife-together policy should be adhered to. Minutes of the hearing are placed on record by respondent no. 2 below pursis dated 15-1-2019. It is seen that the teachers from sr. nos. 1 to 35 have common grievance relating to husband-wife unification. They say, their spouses are posted at a distance ranging from 30 kms. to 400 kms. They pray that husband-wife-together policy should be adhered to. The grievances of other teachers are that even though they have worked in hilly or hardest of the hard areas, they have not been given transfer at one of the places opted for by them and their juniors have been preferred over them. No specific reply has been filed by respondent no. 2 on these counts. That means, the contentions raised by the petitioners are not disputed by the respondents. 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. 15. 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. 16. Rule is made absolute in the above terms. No costs.