Bombay High Court
Prakash Daulat Chaudhari And Ors vs The State Of Maharashtra Thr The ... on 7 June, 2023
Author: Neela Gokhale
Bench: G.S. Patel, Neela Gokhale
28-ASWP-3915-2023+.DOC
Amol
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3915 OF 2023
Prakash Daulat Chaudhari & Ors ...Petitioners
Versus
The State of Maharashtra through the Secretary ...Respondents
& Ors
WITH
WRIT PETITION NO. 3913 OF 2023
Bhujbal Sharad Sadashiv & Ors ...Petitioners
Versus
The State of Maharashtra through the Secretary ...Respondents
Department of School Education and Sports &
Ors
WITH
WRIT PETITION NO. 3914 OF 2023
Shobha Dilip Jadhav & Ors ...Petitioners
Versus
The State of Maharashtra through the Secretary ...Respondents
AMOL
PREMNATH & Ors
JADHAV
Digitally signed by
AMOL PREMNATH
JADHAV WITH
Date: 2023.06.08
19:02:33 +0530
WRIT PETITION NO. 3672 OF 2023
WITH
INTERIM APPLICATION (ST) NO. 10215 OF 2023
Page 1 of 19
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IN
WRIT PETITION NO. 3672 OF 2023
Vishwas s/o Yashwant Thakur & Ors ...Petitioners
Versus
The State of Maharashtra through its Secretary, ...Respondents
Rural Department and Water Cons Department &
Ors
WITH
WRIT PETITION NO. 6253 OF 2023
Bhosale Manisha Dnyanoba & Ors ...Petitioners
Versus
State of Maharashtra through Secondary ...Respondents
Department of School Education & Sports & Ors
WITH
WRIT PETITION NO. 6255 OF 2023
Rutuja Rajendra Chandiwade & Ors ...Petitioners
Versus
State of Maharashtra through Secondary ...Respondents
Department of School Education & Sports & Ors
WITH
WRIT PETITION NO. 6254 OF 2023
Gajanan Damodar Gadave & Anr ...Petitioners
Versus
State of Maharashtra through Secondary ...Respondents
Department of School Education & Sports & Ors
WITH
WRIT PETITION NO. 6712 OF 2023
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Mushtaque Abdulrahman Solkar & Ors ...Petitioners
Versus
State of Maharashtra through Secretary Rural ...Respondents
Development & Ors
WITH
WRIT PETITION NO. 6471 OF 2023
Sangeeta Krushna Pawar & Ors ...Petitioners
Versus
State of Maharashtra through the Secretary, Dept ...Respondents
of School Edu & Sports & Ors
WITH
WRIT PETITION NO. 4923 OF 2023
(Not on Board)
Prakash Rajaram Ingale & Ors ...Petitioners
Versus
State of Maharashtra through the Principal ...Respondents
Secretary, School Education Department & Ors
WITH
WRIT PETITION NO. 5403 OF 2023
(Not on Board)
Prashant Dadaji Shewale & Ors ...Petitioners
Versus
The State of Maharashtra through the Secretary ...Respondents
& Ors
WITH
WRIT PETITION NO. 5405 OF 2023
(Not on Board)
Ramesh Raghunath Gohil & Ors ...Petitioners
Page 3 of 19
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Versus
The State of Maharashtra & Ors ...Respondents
WITH
WRIT PETITION NO. 5492 OF 2023
(Not on Board)
Nirmala Jayaram Dighe ...Petitioner
Versus
The State of Maharashtra through Secretary ...Respondents
School Education & Ors
WITH
WRIT PETITION NO. 4325 OF 2023
(Not on Board)
Ratan Yashwant Khade ...Petitioner
Versus
The State of Maharashtra through the Secretary ...Respondents
School Education Department & Ors
WITH
WRIT PETITION (ST) NO. 12200 OF 2023
(Not on Board)
Vithoba Shivram Gavit & Ors ...Petitioners
Versus
The State of Maharashtra through the Secretary ...Respondents
School Education Department & Ors
WITH
WRIT PETITION NO. 4538 OF 2023
(Not on Board)
Rupali Ramchandra Narkar & Ors ...Petitioners
Versus
The State of Maharashtra through the Secretary
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Rural Development Department & Ors ...Respondents
WITH
WRIT PETITION (ST) NO. 6394 OF 2023
(Not on Board)
Lata Sachin Dongare & Anr ...Petitioners
Versus
The State of Maharashtra through the Secretary ...Respondents
School Education Department & Ors
WITH
WRIT PETITION NO. 3667 OF 2023
(Not on Board)
Denis Joseph Machado & Anr ...Petitioners
Versus
The State of Maharashtra through Additional ...Respondents
Chief Secretary Rural Development Department
& Ors
WITH
WRIT PETITION (ST) NO. 7653 OF 2023
(Not on Board)
Mansi Mangesh Late & Anr ...Petitioners
Versus
The State of Maharashtra through Additional
Chief Secretary Rural Development Department ...Respondents
& Ors
WITH
WRIT PETITION NO. 4802 OF 2023
(Not on Board)
Dipak Dadaji Shewale & Ors ...Petitioners
Versus
Zilla Parishad Nashik through Chief Exuecutive
Page 5 of 19
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Officer & Ors ...Respondents
WITH
WRIT PETITION (ST) NO. 10234 OF 2023
(Not on Board)
Manisha Sanjay Marane & Ors ...Petitioners
Versus
The State of Maharashtra through The Secretary ...Respondents
Department of School Education & Sports & Ors
WITH
WRIT PETITION NO. 1822 OF 2023
(Not on Board)
Dilip G Datre & Ors ...Petitioners
Versus
Zilla Parishad Nashik through Chief Executive ...Respondents
Officer & Ors
WITH
WRIT PETITION NO. 6762 OF 2023
(Not on Board)
Shrirang Ganpat Karale & Ors ...Petitioners
Versus
The State of Maharashtra through the Secretary ...Respondents
Department of School Education & Sports & Ors
WITH
WRIT PETITION NO. 6112 OF 2023
(Not on Board)
Vandana Dattatray Durge & Ors ...Petitioners
Versus
The State of Maharashtra through the Secretary ...Respondents
Department of School Education & Sports & Ors
Page 6 of 19
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WITH
WRIT PETITION NO. 6017 OF 2023
(Not on Board)
Lalaso Dinkar Bhandalkar & Ors ...Petitioners
Versus
The State of Maharashtra through the Secretary
Department of School Education & Sports & Ors ...Respondents
WITH
WRIT PETITION NO. 4809 OF 2023
(Not on Board)
Kishor Shantaram Trimbakkar & Anr ...Petitioners
Versus
The State of Maharashtra through the Secretary ...Respondents
& Ors
WITH
WRIT PETITION NO. 4810 OF 2023
(Not on Board)
Tony Pedur Mhapsekar & Ors ...Petitioners
Versus
The State of Maharashtra through the Secretary ...Respondents
Rural Development Department & Ors
Mr Suresh Pakhale, Senior Advocate, wtih Nilesh Desai, Pranit
Kulkarni, Saurabh Pakhale, Abhishekh Karnik, for the Petitioner
in WP/4923/2023,
WP/6017/2023,WPST/10234/2023,WPST/10766/2023,
WP/3915/2023, WP/6471/2023,
WP/3913/2023/WP/3914/2023, WP/6255/2023,
WP/6253/2023.
Mr Bandiwadekar, Senior Advocate, & Amita Gavkar, for the
Petitioner in WP/6712/2023, WP/3672/2023 &
IAST/10215/2023.
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Mr Anilkumar Patil, for the Petitioner in WP/4802/2023,
WP/1822/2023.
Mr Kishor Patil, i/b Pradeep Gole, for the Petitioner, WP/5403/2023,
WP/5405/2023, WP/5402/2023, WP/5492/2023,
WP/4325/2023, WP/4923/2023, WPST/12200/2023 (Not on
Board).
Mr Ashwin Kapadnis, with Vivek Rane i/b Balaji Shinde for the
Petitioner in WP/4538/2023, WP/6394/2023, WP/4809/2023,
WP/4810/2023 (Not on Board).
Mrs PJ Gavhane, AGP, for the Respondents Nos. 1 to 3.
Mr CG Gavnekar, with Ashutosh Gavnekar & Rohit Parab, for
Respondent Nos. 4 and 5 in WP/6712/2023 & WP/3672/2023.
Mr Pramod G Kathane, with Samyak Bhatkar, Pooja S Bhardwaj &
Ajaykumar Kori, for Respondents Nos. 4, 4a & 5 in
WP/3913/2023 & WP/3915/2023
Mr Sumit Kate, i/b Uday Warunjikar, for Respondents Nos. 4 & 5 in
WPST/7852/2023, WP/6762/2023, WP/6017/2023.
Mr Rohit Sakhadev, for Zilla Parishad, Nashik.
Ms Urmila Joshi, Under Secretary, RDD present in Court.
CORAM G.S. Patel &
Neela Gokhale, JJ.
DATED: 7th June 2023 PC:-
1. There have been some developments since our order of 13th April 2023. In that order we granted interim relief. That was in Writ Petition No. 3672 of 2023 but it will obviously extend to all Petitions.
2. Since we have granted ad-interim relief, it would appropriate to reproduce that order today for completeness, especially in light of subsequent developments.Page 8 of 19
7th June 2023 ::: Uploaded on - 08/06/2023 ::: Downloaded on - 08/06/2023 20:46:41 ::: 28-ASWP-3915-2023+.DOC "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 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.
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4. There is no doubt that the issue of routine or general periodic transfers whether annual or otherwise 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 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 Page 10 of 19 7th June 2023 ::: Uploaded on - 08/06/2023 ::: Downloaded on - 08/06/2023 20:46:41 ::: 28-ASWP-3915-2023+.DOC 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 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 Page 11 of 19 7th June 2023 ::: Uploaded on - 08/06/2023 ::: Downloaded on - 08/06/2023 20:46:41 ::: 28-ASWP-3915-2023+.DOC 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 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.
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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.
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. There is an Affidavit in Reply filed by one Punita Gurav, the Education Officer, the 5th Respondent for herself and on behalf of the Zilla Parishad, the 4th Respondent. The Affidavit is from page 298 onwards. Broadly stated, this Affidavit maintains that the Petition is without substance and that the impugned transfers being effected are strictly in accordance with the 7th April 2021 Government Resolution ("GR"). She states that the list has been prepared systematically without human interference and without error. She also says that the GR does not allow the CEOs of Zilla Parishads to entertain any representations.
4. This seems to us to be curiously at odds with what the State Government says in its Affidavit in Reply filed by one Popat Dattatraya Deshmukh, Deputy Secretary, Rural Development Page 13 of 19 7th June 2023 ::: Uploaded on - 08/06/2023 ::: Downloaded on - 08/06/2023 20:46:41 ::: 28-ASWP-3915-2023+.DOC Department. That Affidavit goes from page 318 to page 329. Paragraph 11 at page 324 reads thus:
"11. I say that, referring to the huge resistance of teachers to the last round of the process, a revised Study Group has been formed by Government by the resolution dated 14.03.2023 under the chairmanship of Chief Executive Officer, Zilla Parishad, Pune to consider the representations of various Teacher Sanghatanas and teachers independently, the challenges faced by the local administration and software companies, judgments passed by Hon'ble Court in various petitions filed by the teachers at different stages of the process and to suggest necessary amendments in the said GR dated 07.04.2021."
5. There is a facial contradiction between what is being said by the Zilla Parishad and what is being said by the State Government.
6. There is yet another complication. A large group of matters on substantially the same issue came up before a Division Bench of AS Chandurkar and MW Chandwani JJ at the Nagpur Bench on 11th April 2023. On a reading of this judgment, it is clear that the contentions raised in the Petitions before us are more or less the same as the contentions raised before the Division Bench of Chandurkar and Chandwani JJ. In paragraph 6, the Division Bench noted the seven distinct categories of grievances. Paragraph 6 of the judgment reads thus:
"6. This takes us to the grievances made by the petitioners in this batch of petitions, who are considered in Page 14 of 19 7th June 2023 ::: Uploaded on - 08/06/2023 ::: Downloaded on - 08/06/2023 20:46:41 ::: 28-ASWP-3915-2023+.DOC last step of the transfer mentioned above in clause 8. For convenient purpose, instead of going to the grievance qua teachers, we have categorized the grievances of the teachers broadly in following categories.
Grievance-1: The grievance of most of the petitioners/teachers in this batch of petitions comes under this category. Some of the petitioners have ailments. Some of them have already completed 53 years of their age on cut of date. The most of the petitioners have raised a grievance that even though, initially their names were not finding place in the list of the teachers liable for transfer, in last round most of these petitioners, who have completed their age of 53 years during the intervening period of 30/06/2022 till the last round of transfer process, have been transferred. According to them, since they have completed the age of 53 years or suffering from ailments, they come under category- 1 and to exercise the option for retention was not made available to them.
Grievance-2: Some of the petitioners have been posted in difficult area and again they are transferred to the other difficult area. According to these petitioners, they had already worked in the difficult area and again they have been transferred in another difficult area.
Grievance-3: The petitioners raised grievance that they have not completed 3 years in difficult area still they are transferred.
Grievance-4: The grievance of this category is that though they have not completed 10 years in plain area which is mandatory requirement, still they have transferred in this process.
Grievance-5: The some of the petitioners, who were eligible for couple benefit and are required to be placed within 30 kilo meters radius of the places where their spouses were working, have been transferred beyond 30 kilo Page 15 of 19 7th June 2023 ::: Uploaded on - 08/06/2023 ::: Downloaded on - 08/06/2023 20:46:41 ::: 28-ASWP-3915-2023+.DOC meters of radius of the places where their spouses are working. Some of the petitioners have not been considered for the couple benefit, since they have not completed 3 years of service. Some of the petitioners are not given option for taking benefit of couple transfers.
Grievance-6: The petitioners in who were taken up for transfer in last phase were not given choice of 30 places which were given to the teacher who were transferred in initial process.
Grievance-7: While effecting transfers to the teachers in difficult area, the seniority has not been considered.
7. After noting the rival contentions, the Division Bench's observations in paragraphs 15 to 17 are important.
"15. Every care has been taken in the Transfer Policy by providing entire mechanism to redress the grievances not only at each stage of the transfer process, even after the completion of transfer process, an option has been given to the teachers to raise their grievance by making complaint or representation to Committee. Further, if teacher is not satisfied with the outcome of the said complaint by the Grievance Committee, an appeal has been provided before the Divisional Commissioner of the respective areas.
16. The transfer of teachers is always a matter which have many aspects and manners and required individual adjustment in some cases. The mechanism provided by the Transfer policy to resolve the grievances is more suitable for the teachers than approaching to this Court, having persons/Authorities in the Committee, who have knowledge of ground realities and aware of the day to day problems of the teachers. Thus, we find that there is efficacious alternate remedy available to the petitioners to Page 16 of 19 7th June 2023 ::: Uploaded on - 08/06/2023 ::: Downloaded on - 08/06/2023 20:46:41 ::: 28-ASWP-3915-2023+.DOC take care of the grievances raised by these petitioners in this batch of petitions.
17. We noticed that similar grievances have been made before this Court against the transfer orders in earlier transfer processes in Writ Petition Nos.3453 of 2011, 3236 and 2846 of 2013. In all these writ petitions, the petitioners, who were teachers, were relegated to exercise alternate remedy before the Committee/Authority."
8. For these reasons, the Division Bench issued directions in paragraphs 18 to 20 and they read thus:
"18. We are conscious of the fact that most of the petitioners approached this Court without availing this remedy and while doing so the period of raising grievance might have already been over. Therefore, we relegate the petitioners to the Committee constituted under Clause 5.10.1 of the Transfer Policy to raise their grievances to the respective Grievance Committee within seven (7) days from the date of this order.
19. We direct the committees of the respective Zilla Parishads, who are parties in this batch of petitions shall accept the representations from the petitioner, if so made within permitted time. The Committee provided by Clause 5.10.1 of Transfer Policy to consider the grievances/irregularity raised by the petitioners independently without being influenced by the observations made by this Court and if the Committee finds any irregularity or illegality, it should rectify the same, if necessary. We direct the Grievance Committee concerned to pass a reasoned order after classifying teacher's vis-a-vis their grievances. If the petitioners are not satisfied with the orders of the Committee, they may exercise the option of appeal available to them under clause 5.10.2 within seven Page 17 of 19 7th June 2023 ::: Uploaded on - 08/06/2023 ::: Downloaded on - 08/06/2023 20:46:41 ::: 28-ASWP-3915-2023+.DOC (7) days from the date of the order of the Committee.
20. We hope that the Committee will resolve the grievances of the petitioners/teachers as far as possible giving human approach and within the framework of Transfer Policy."
9. The Division Bench order is of 11th April 2023. We do not know if the study group took into account the directions of the Division Bench. We say this because the Division Bench ordered that individual representations be considered at the Zilla Parishad level, but the Affidavit of the Zilla Parishad says that the CEO of the Zilla Parishad has no power to consider individual representations. All these situations cannot simultaneously coexist.
10. The essence of the problem seems to be that the outsourced software or computerised algorithms for scheduling the transfers do not seem to have been appropriately designed to take into account the various concerns and various implications of different provisions of the applicable GR. In any form of software development, a critical part is the brief because the person who prepares the software must design it not in the abstract but to the required specifications to achieve the correct result.
11. We need Mrs Gavhane to take instructions from the State Government as to what is to be done with the transfer list that is being or has been computerised and whether the old list is being maintained or is now to be revised.
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12. The only GR that is shown to us is of 23rd May 2023 but it relates to inter district transfers. That is irrelevant. We are concerned with intra-district transfers, as was the Division Bench at Nagpur. We are not told of the result of the study group relating to the 7th April 2021 intra-district transfers. Mrs Gavhane will take instructions and apprise the Court next week.
13. The Affidavit in Reply filed in Writ Petition No. 3672 of 2023 will be read as an Affidavit in Reply in all other Petitions including and most especially Mr Pakale's
14. All previous orders including those passed by the Vacation Bench with continue till the next date.
15. List the matter on 13th June 2023.
(Neela Gokhale, J) (G. S. Patel, J) Page 19 of 19 7th June 2023 ::: Uploaded on - 08/06/2023 ::: Downloaded on - 08/06/2023 20:46:41 :::