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2019 Supreme(Bom) 878
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR
Sunil B Shukre, S.M. Modak, JJ.
Aseem Gupta – Appellant
Versus
Bandu Bhauji Sidam – Respondent
Miscellaneous Civil Application No. 650 of 2019; Contempt Petition No. 147 of 2019
Decided On : 24-07-2019
Sunil Manohar, Adv., N.P. Mehta, Adv., S.P. Dharmadhikari, Adv., R.K. Joshi, Adv., W.G. Paunikar, Adv.
Headnote:
Contempt Laws – Contempt Petition – Transfer Policy – Respondent no. 1 in Contempt Petition has sought review of final order passed in the said contempt petition – Senior Advocate for the applicant submits that the order needs a re-look for more than one reason – He submits that by the order, what was not granted in original petition has been given to the petitioners and it is not permissible in law. – He further submits that there is a conflict between the order and the original judgment rendered in WP which was the root cause of the contempt petition, at least according to the petitioners. – He points out that the judgment mandates the State Government to adhere to the transfer policy 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 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 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 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. – Held, Mandate of sub-clause (5) is loud and clear. – The directions of the Court are required to be first implemented and then only the exercise of effecting intra-district transfer by the Competent Authority is permitted. – The judgment precisely directs the same when it prescribes that all the guidelines contained in the transfer policy 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 and the directions contained in the judgment – Judgment has attained finality, and it stands in no conflict with order, and so must be respected by all parties to it for all that it vouches for. – Else, an eyesore like conflict would arise with sub-clause (5) of clause (V) of transfer policy – Order is an order issued only to ensure faithful implementation of the directions given by its Court in its judgment, and we must clarify, it is permissible in law. – For this conclusion, court would like to draw support from the law laid down by the Honble Apex Court in the case of Kshiti Goswami & ors v. Subrata Kundu & ors, (2013) 11 SCC 618. – 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, 1993 Supp4 SCC 596, but that is not the case here. – Inspite of all said and done, just to leave no room for any confusion, court would like to take this opportunity to issue a further clarification. – Court 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 court feel, an appropriate clarification should serve the interests of justice. – Court clarify that the guidelines contained in the transfer policy shall be adhered to scrupulously and in terms of the judgment 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 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 equals". – Review Application Disposed of
JUDGMENT :
Sunil B. Shukre, J.
Heard. Admit. Heard finally by consent of parties.
2. 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.
3. Shri Sunil Manohar, learned Senior Advocate for the applicant submits that the order dated 10th June 2019 needs a re-look 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.
4. 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.
5. 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
