JUDGMENT 1. The petitioner has approached this Court by way of this petition filed under Article 226 of Constitution of India with following prayers and amended prayers. (Amendment in prayers carried out as per the Court’s order dtd.22/09/2012.) (A) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent authorities to consider the case of the petitioner sympathetically and decide the same as expeditiously as possible for transferring him at any school in Anand District. (AA) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the order dtd. 8/10/2012 passed by the resp. No.1 in the interest of justice. (B) Pending admission, hearing and final disposal of this Writ petition, Your Lordships may be pleased to direct the respondents to decide the case of the petitioner and transfer him to Vadgam, Tal. Khambhat, Dist., Anand; (C) Be pleased to pass such other and further relief as may be deemed just and proper by Your Lordships in the facts and circumstances of the case. Thus, what is essentially under challenge is the order dated 8th October, 2012 passed by respondent no.1, rejecting the proposal for transfer of the petitioner on account of ailment of his wife pleaded as a ground for seeking his transfer by holding that the said ailment is not covered under the Resolution of Education Department dated 23rd May, 2012 and hence, the request for transfer could not be accepted. 2. The facts as could be gathered from the memo of the petition deserve to be setout as under. 3. The petitioner was appointed as Vidhyasahayak on 2nd May, 2008 and was posted at respondent no.3 School i.e. at Abdasa, District Kutch. Since then, the petitioner is discharging his duties as Vidhyasahayak in the said school. The petitioner got married in the year 1995 and has three daughters and one son. The petitioner’s wife is suffering from Tumor as it is mentioned in the memo of the petitioner in paragraph no.3. On account of the Tumor, she has developed distortion in the muscles of face and jaw and the jaw improvement has been adversely affected. This has resulted into adversely affecting her eye sight and hearing ability. She is virtually blind in one eye. On account of the Tumor, she has developed distortion in the muscles of face and jaw and the jaw improvement has been adversely affected. This has resulted into adversely affecting her eye sight and hearing ability. She is virtually blind in one eye. The petitioner has to take tremendous trouble in treating his wife as the disease is deteriorating. The petitioner’s condition is also becoming precarious. The petitioner’s wife is staying at her native, which is at Anand District. The petitioner is serving at Kutch District. The petitioner has made an application for transfer to Anand District vide his application dated 16th June, 2012 and the respondent no.2 vide his letter dated 29th June, 2012 returned the application back to the petitioner on the ground that the disease of the petitioner’s wife was not covered in the Resolution dated 23rd May, 2012. The petitioner, thereafter, put up one more application dated 5th July, 2012 along with necessary documents requesting respondent no.1 to appreciate his troubles and to consider his case as a special case and transfer him to Anand Taluka so he could look after his wife and children. One more application is submitted by petitioner on 18th July, 2012. The petitioner has pleaded in the petition that when the petition was filed, there were five vacancies in Vir Shahid Dushyantkumar Vasantlal Pathak Primary School, Vadgam, Taluka Khambhat, District Anand and the said request of the petitioner for transfer was rejected vide order dated 8th October, 2012, which is required to be quashed and set aside. 4. Learned advocate for the petitioner contended that the reliance placed upon the Resolution dated 23rd May, 2012 is indeed unfortunate for rejecting the petitioner’s request for transfer, as there is no earthly reason for not considering the disease of the petitioner’s wife covered under the Resolution. The non-application on the mind of the respondent authority is therefore, required to be deprecated and the petitioner is required to be ordered to be transferred from Kutch District to Anand Taluka. 5. Learned advocate for the petitioner invited this Court’s attention to the various medical papers appended to this petition and contended that the case of the petitioner’s wife deserve to be considered so as to order transfer of the petitioner from Kutch District to Anand Taluka. 6. 5. Learned advocate for the petitioner invited this Court’s attention to the various medical papers appended to this petition and contended that the case of the petitioner’s wife deserve to be considered so as to order transfer of the petitioner from Kutch District to Anand Taluka. 6. Learned advocate for the petitioner when was called upon to explain as to why in the memo of the petition nowhere it is stated that the Tumor, which said to have been existing, is not define to be malignant so as to indicate that the petitioner’s wife is suffering from Cancer. The petitioner’s counsel was given time and ultimately by way of appropriate affidavit it is averred that the petitioner’s wife is suffering from Cancer. The said affidavit is filed on 14th February, 2013. In response thereto the further affidavit-in-reply came to be filed by Shri B.M. Ninama, Administrative Officer (Legal), Directorate of Primary Education contending that the petitioner had not clearly stated anywhere that the petitioner’s wife suffered from Cancer and the affidavit filed on 14th February, 2013 is not accompanied with the documents and relevant medical papers indicating that the petitioner’s wife in fact suffering from Cancer. In these facts and circumstances, the petitioner’s petition needs to be rejected. 7. The respondents have in fact filed affidavit indicating that initially the case of the petitioner for transfer was not considered favourably, as it was not falling within the exception mentioned in the Government Resolution dated 13th May, 2012 and after petition was amended, once again the case was reconsidered and the appropriate order is passed on 30th October, 2012 wherein also it is specifically mentioned that on account of the petitioner not being qualified for Inter District Transfer, as he had not put up five years of service as provided under Resolution dated 13th May, 2012, his case cannot be considered favourably. 8. Learned advocate for the respondent had thereafter also contended that unfortunately, the medical papers do not specifically spellout anywhere that petitioner’s wife is suffering from Cancer as alleged by the petitioner. 9. Before adverting to the rival submissions of learned advocate for the parties, it is most expedient to setout herein below few indisputable aspects emerging from the pleadings and papers in the matter. (i) The petitioner was married in the year 1995 and the petitioner’s wife was diagnosed and operated from Tumor in the year 2006. 9. Before adverting to the rival submissions of learned advocate for the parties, it is most expedient to setout herein below few indisputable aspects emerging from the pleadings and papers in the matter. (i) The petitioner was married in the year 1995 and the petitioner’s wife was diagnosed and operated from Tumor in the year 2006. The petitioner has, as could be seen from the averments made in paragraph no.3, not specifically mentioned that petitioner’s wife suffered from Cancer. The entire memo of the petition bearing the amendment or amended portion is cause speculate silent qua word “Cancer”. The word Tumor is occurring and hence, the petitioner was called upon to file specific affidavit, which ultimately came to be field on 14th February, 2013. However, as contended by the respondent, no other medical papers have been produced. (ii) The medical papers produced on record is indicative that the petitioner’s wife does suffer from some ailment and Tumor, but whether the Tumor is malignant or not is not very specifically coming on record. The first certificate is produced at page no.16, which unfortunately do not indicate any such disease. The second is a document at page no.17, which is a certificate dated 31st March, 2012 issued by a Doctor, who is practicing Psychiatry. The third document is again from the said Doctor dated 3rd February, 2011. The certificate issued by BAPS Yogiji Maharaj Hospital or which could be said to be discharge summary as could be seen from the said document dated 29th May, 2012 produced at page no.19 and which is self attested contains the relevant which needs to be reproduced as under : “History and Hospital Course : Kailashben Dineshbhai Makwana, a 33 year old female, non diabetic, non hypertensive, K/C/O epilepsy since 1 year patient came here with complains of irrelevant talking, irritable with alter sensorium, generalized headache sine 1 year, decrease hearing since 1 year. History of tonic clonic seizure about 45 episode since 8 pm on 23/05/2012, last episode before 2 hour of arrival. So she was consulted by Dr. Sachin Mistry and advised for admission in ICU and MRI brain, which suggestive of in homogeneously enhancing altered signal intensity lesion involving para pharyngeal space, masticator space, retromaxillary space on right side with intracranial extension in right temporal region and adjacent dural spread along temporoparietal region suggest malignant etiology more likely. So she was consulted by Dr. Sachin Mistry and advised for admission in ICU and MRI brain, which suggestive of in homogeneously enhancing altered signal intensity lesion involving para pharyngeal space, masticator space, retromaxillary space on right side with intracranial extension in right temporal region and adjacent dural spread along temporoparietal region suggest malignant etiology more likely. Patient was treated with iv fluids, antibiotic, antiepileptic, antacid, sedative and other supportive medication. Patient improved well and shifted to ward on 24/05/2012. Valuable opinion of Dr. Daxesh Patel (surgical onocology) was taken on 24/05/2012 and he advised for CT guided biopsy from lesion and USG abdomen and pelvis. USG was suggestive of mild hepatomegaly with fatty changes and biopsy report was suggestive of fibrosis, hyalinization and plasma cells rich infiltrate, no granuloma or morphological evidence of malignancy, mucin stain (PASD) negative, suggest serum electrophoresis, suggest IHC if indicated. Stay in ward was smooth and uneventful and was discharged on 29/05/2012 in stable hemodynamic condition. Thus, here also it does indicate likelihood of malignancy. But, unfortunately, no clear report coming on record qua indicating of petitioner’s wife suffering from cancer. However, the Court hastened to add here that the malignancy and Cancer is pleaded, then unless it is disproved, has to be accepted, as the Court is not equipped to delve much into this papers. Therefore, suffice it to say that the decision should be of the appropriate medical expert qua the disease of petitioner’s wife. (iii) The Resolution dated 23rd May, 2012 indicate that the said is a Resolution providing for various contingencies and aspects and incidents of transfer and it governs the transfer of primary, higher primary teachers’ transfers within the district and outside the district and in that Resolution there is one Chapter called Chapter ‘Gh’ in district transfer and therein Clause no.7 do indicate that the teacher/Vidhyasahayak, who had completed five years on 31st December of the year and in case of Vidhyasahayak, who is eligible to receive full pay, would be entitled for applying for Inter District Transfer. (iv) In that very Resolution dated 23rd May, 2012, there is one more Chapter called ‘J’, which provides for transfer on account of medical grounds. (iv) In that very Resolution dated 23rd May, 2012, there is one more Chapter called ‘J’, which provides for transfer on account of medical grounds. In that provision, the Clause no.1 indicate that the Teacher himself/herself or his or her spouse or their children are suffering from the disease mentioned thereunder would be entitled to seek benefit of transfer on the ground of such medical contingencies or on medical ground. In that list Cancer is one of the disease, which is said to be afflicting anyone mentioned in the list, then the teacher concerned is entitled to seek benefit of transfer on that ground. However, the requisite documentary evidences are required to be produced on record. The provision further clarifies that benefit of transfer on medical grounds will be available to only one in case when the ailment is said to be suffered by the children. In other words, if the husband and wife both are teacher/Vidhyasahayak, then both the spouses will not be entitled to receive the benefit of transfer on medical grounds and it is only either of the one will be entitled for such transfer. (v) The order impugned in this petition is order dated 8th October, 2012, wherein the concerned authority of the State has mentioned that the said provision giving benefit of transfer on medical ground is confined to only teachers and not covering the persons holding Vidhyasahayak posts and the item no.3 wherein the word “Vidhyasahayak” occurs and on that basis it can be said it covers, then it is on the ground of children’s ailment only. Therefore, on this ground the initial request for transfer was rejected. The subsequent order dated th October, 2012 contains one more ground in the form of provision of Chapter Gh (7) and it was pleaded that as the petitioner did not completed five years of service at Kutch, he was not eligible to be transferred on that ground also. 10. This Court is of the considered view that the Resolution dated 23rd May, 2012 has not been interpreted correctly so as to make the provision thereof applicable to the concerned. The Resolution dated rd May, 2012 on its plain reading clearly indicate that as and when the provision is to be made applicable to teachers, it contains the reference to the word “Teachers” and it is to be applicable to Vidhyasahayak. It contains the word “Vidhyasahayak”. The Resolution dated rd May, 2012 on its plain reading clearly indicate that as and when the provision is to be made applicable to teachers, it contains the reference to the word “Teachers” and it is to be applicable to Vidhyasahayak. It contains the word “Vidhyasahayak”. Therefore, if one reads it cursorily then, one may gather the impression that the provision of Chapter J is not applicable to the Vidhyasahayak, which may all the more appears to be correct, as Vidhyasahayaks have one more impediment in their way to transfer, as they are suppose to complete, at a station of initial appointment, five years as could be seen from the provision of Chapter Gh (7) of the said Resolution. But, close and meaningful reading of the resolution would clearly indicate that the provision of Chapter J is in fact an exception to the entire provision and that exception is indicate entitling the persons, who have been afflicted on account of the disease or whose spouse or children have been afflicted upon the disease mentioned thereunder. The said exception cannot be denied to the Vidhyasahayaks or teachers on the ground that in the initial in Chapter J (1), there is conspicuous absence of reference to word “Vidhyasahayak”, whereas there is reference to word “Vidhyasahayak” in Chapter J (3). If this absence is to be treated as absence deliberately, then, it would be absolutely unfortunate and not sustainable in eye of law, as the affliction on the ground of medical contingencies and serious disease do not require their applicability to ‘A’ group employees leaving behind ‘B’ group employees without any benefit. Infact, the complete reading of provision of Chapter J (1) is providing for transfer as an exception only on medical ground. Of course, in that provision, the word “Vidhyasahayak” is conspicuously absent. But, if the further provision 2 and 3 are looked into where the word Vidhyasahayak is mentioned, it would clearly indicate that if the intention of leaving Vidhyasahayaks uncovered by one is there then, the same would make it an absent and non-applicable. Of course, in that provision, the word “Vidhyasahayak” is conspicuously absent. But, if the further provision 2 and 3 are looked into where the word Vidhyasahayak is mentioned, it would clearly indicate that if the intention of leaving Vidhyasahayaks uncovered by one is there then, the same would make it an absent and non-applicable. The word Vidhyasahayak is not mentioned in Clause no.1, as it is mentioned in Clause no.3, which is part and parcel of the entire provision of Chapter J. In my view, the word Vidhyasahayak is to be included in Chapter no.1 and that is the only way of reading this provision, as there cannot be any provision, which will be permitted discrimination qua the employees when the sub-clause 3 of Chapter J is unequivocally clear qua covering of Vidhyasahayak as well as Teachers/regular Teachers. Therefore, such an unfortunate distinction, which is sought to be made by the authority, as could be seen from the communication dated 8th October, 2012 is required to be deprecated and therefore, to that extent the said communication is required to be quashed and set aside. The communication dated 30th October, 2012 is also a communication under which by invoking provision of Chapter Gh (7), the request for transfer is rejected. In my view even that communication is also not to be taken as binding communication and is also required to be quashed and set aside. As the said communication does not take care of the situation, as it is provided under Chapter J in which it is specifically mentioned that the Chapter J is providing for an exception under which the transfer is permissible on account of medical ground or where sub-clause 3 unequivocally covering the employees called ‘Vidhyasahayak’ is required to be read as an exception to the entire provision and therefore, the benefit of that Chapter J is specifically available to even Vidhyasahayaks also. 11. At this stage, one more question emerges for consideration, as to whether the Vidhyasahayaks’ merit consideration at par with regular Teachers, as there is an additional qualification required for seeking transfer as could be seen from provision of Chapter Gh, specially with reference to provision Gh (7). 11. At this stage, one more question emerges for consideration, as to whether the Vidhyasahayaks’ merit consideration at par with regular Teachers, as there is an additional qualification required for seeking transfer as could be seen from provision of Chapter Gh, specially with reference to provision Gh (7). This question need not detain this Court any more in holding that in a regular given circumstances, when there is no contingency pleaded, then requirement of Chapter Gh (7) is not to be relaxed in any manner, as the Court has held hereinabove the provision of Chapter J is set all exceptions to the otherwise binding rules of transfer, the same is required to be taken into consideration and if the ailment suffered by the spouse and/or children of Vidhyasahayak warranting his constant care and presence, then they cannot be denied of benefit of provision of Chapter Gh (7). 12. In the result, the petition is partly allowed. The two communications are quashed and the respondent – State is hereby directed to reconsider the case in light of Chapter J of the said Resolution and while reconsidering, it would be open to the State to call for all the documentary evidences in form of medical certificates as provided therein and ascertain as to whether in fact petitioner’s wife is suffering from Cancer, which would warrant his presence and constant care to wife and on petitioner producing the requisite unequivocal certificate from the competent medical experts, then his case be considered in accordance with law and observations made hereinabove, which would result into affecting the transfer of the petitioner, as per his request. The petition is disposed of accordingly. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service permitted. Petition partly allowed.