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2021 DIGILAW 737 (GUJ)

PADHAR DHIRUBHAI MAVJIBHAI v. STATE OF GUJARAT

2021-08-26

A.Y.KOGJE

body2021
ORDER : 1. This petition under Article 226 of the Constitution of India is filed with following prayers:- “8. (a) to admit this petition and to allow the same by issuing Notice for Final Disposal on returnable date. (b) to quash and set aside the impugned order dated 26-11-2020 issued by the Resp. No.3 and received by the petitioner on 27-11-2020 as per Annexure-G;” 2. While issuing notice on 03.12.2020, this Court directed that till next date of hearing, the respondent authority shall not issue any posting order to the petitioner. It was also directed that this petition is to be heard with SCA Nos.15170 and 15411 of 2020. However, as requested by learned Advocate for the petitioner, despite the aforesaid order, this petition is taken up independently. 2.1 It appears that on 04.12.2020, posting order was issued and hence, amendment was moved, which came to be allowed by order dated 15.12.2020 and the amended prayer is as under:- (f) to quash and set aside the impugned order transfer dtd. 04.12.2020 issued by the Resp. No.3 as per Annexure J/1 by wrongfully treating the petitioner as excess teacher in Jodhpur Primary School No.2 and transferring him to Sarkhej Branch Primacy School No.2, and to restore the status-quo ante as prevailing prior to 4-12-2020;” 2.2 It is now reported that the petitioner has, despite stay order in favour of the petitioner, reported to the place to which the petitioner is transferred as having declared surplus. 3. Learned Advocate for the petitioner submitted that the petitioner is a blind candidate and having passed MA, B.Ed. was duly selected and appointed as primary teacher in Kamijla Primacy School, Tal. Viramgam, Dist. Ahmedabad. Thereafter, the petitioner was transferred to Ravinagar Primary School No.1, Tal. City, Dist. Ahmedabad. Thereafter being declared surplus at Ravinagar Primary School No.1, the petitioner was transferred to Jodhpur School No.2, Tal, City, Dist. Ahmedabad on 26.11.2008. 3.1 It is submitted that in view of enactment of the Right of Children to Free and Compulsory Education Act, 2009 with effect from 01.04.2010, primary section was divided into primary section (consisting of standards 1 to 5) and upper primary section (consisting of standards 6 to 8). Ahmedabad on 26.11.2008. 3.1 It is submitted that in view of enactment of the Right of Children to Free and Compulsory Education Act, 2009 with effect from 01.04.2010, primary section was divided into primary section (consisting of standards 1 to 5) and upper primary section (consisting of standards 6 to 8). The State came out with GR dated 16.02.2012 giving option (“vikalp”) to those teachers who were qualified to be appointed to upper primary section to be absorbed in upper primary section and had invited such options from teachers. The petitioner had given such option for absorption as there was one vacancy in language teacher in the very school, i.e. Jodhpur School No.2 and accepting option given by the petitioner, by order dated 31.07.2012, the petitioner was posted as language teacher in the same school. 3.2 Learned Advocate for the petitioner submitted that there was a clarification in the earlier GR by GR dated 07.09.2013, which would indicate that for the purpose of transfer in respect of the teachers who had given option and were absorbed in upper primary, seniority has to be considered from the date of their appointment in the school and not from the date of exercising of option. On the basis of this, the petitioner claims that the date of appointment for the petitioner in Jodhpur School No.2 to be treated as 26.11.2008 and not 31.07.2012. 3.3 The petitioner filed this petition on the ground that as there were surplus teachers and exercise for declaring surplus teacher at Jodhpur School No.2 was to take place, the petitioner apprehended that the petitioner would be considered to be junior most and other candidate, viz. Ashvin C.Patel, who entered Jodhpur School No.2 by direct recruitment on 05.09.2011 would be treated as his senior though his appointment is of 05.09.2011 whereas appointment of the petitioner is 26.11.2008 in Jodhpur School No.2. Learned Advocate for the petitioner submitted that transfer of the petitioner for having declared surplus teacher is contrary to GR dated 23.05.2012 and amended by GR dated 07.09.2013. 3.4 It is lastly submitted that the petitioner is blind candidate, is having other responsibilities of ailing wife and unemployed daughter and younger daughter being treated for neurological ailment and one son, who is minor and studying in 7 standard. 3.4 It is lastly submitted that the petitioner is blind candidate, is having other responsibilities of ailing wife and unemployed daughter and younger daughter being treated for neurological ailment and one son, who is minor and studying in 7 standard. The brother of the petitioner is also suffering with mental retardation and is also responsibility of the petitioner and hence, frequent transfer of the petitioner has acted against the interest of the petitioner also. It is submitted that as per subsequent GR dated 07.09.2013, seniority of the petitioner in the very school is protected, despite option exercised by the petitioner. 3.5 Learned Advocate for the petitioner emphatically submitted about conduct of the officer who was conducting camp on 04.12.2020, the date on which the petitioner was invited to attend camp of surplus teachers and despite order dated 03.12.2020 being brought to the notice of the respondent authorities, order dated 04.12.2020 was handed over to the petitioner. This conduct of such officer would indicate highhandedness and an attempt to overreach orders of the Court. 4. Learned Advocate for respondent No.3 submitted that the petitioner had urged and placed heavy reliance on the date of first appointment of the petitioner in which he was appointed as teacher in Jodhpur School No.2 on 26.11.2008. It is submitted that in the petition, the petitioner had also placed reliance on GR dated 07.09.2013 at Annexure-F with respect to calculation of seniority level for transfer and placed reliance that the seniority of the petitioner should be taken into account from 26.11.2008, which is not correct as the petitioner was appointed as teacher originally in Jodhpur School No.2 and he availed option as language teacher on 01.06.2012 and subsequently, was appointed with effect from 01.06.2012. So in terms of language division teachers list, the petitioner joined on 01.06.2012 only and hence, 01.06.2012 is the effective date. 4.2 It is submitted that one Mr.Ashwinbhai Patel was appointed as direct recruitment as language teacher on 05.09.2011, which in the language division teachers list, came before the appointment of the petitioner. So in terms of language division teachers list, the petitioner joined on 01.06.2012 only and hence, 01.06.2012 is the effective date. 4.2 It is submitted that one Mr.Ashwinbhai Patel was appointed as direct recruitment as language teacher on 05.09.2011, which in the language division teachers list, came before the appointment of the petitioner. 4.3 It is submitted that transfer of the petitioner is done on account of revised GR issued by the Government dated 26.10.2020, in which Clause-4 of Prakran-V clearly states that in case of excess staff and with respect to transfer of the teachers of primary /higher primary teaching staff, those teachers will be selected who comes last in the line from their respective divisions so by interpreting the same in the division of language teachers the last candidate /teacher in the line was the petitioner and hence, the petitioner is selected for transfer. 4.4 In connection with the submission of learned Advocate for the petitioner regarding overreaching the order of the Court, it is stated on affidavit by one Dr.Lagdhir D.Desai as under:- “13. ….. that due to some communication gap between the parties the present respondent was not aware regarding passing of the orders of interim relief by this Hon’ble Court dated 03.12.2020 and accordingly, had issued the posting orders of the present petitioner on dated 04.12.2020 therefore, the answering respondent seeks apology of this Hon’ble Court….” 5. Having considered the rival submissions of learned Advocates for the parties and having perused documents on record, it appears that the petitioner was transferred as teacher from Ravinagar Primary School No.1 to Jodhpur School No.2 as being an surplus teacher in Ravinagar Primary School No.1 vide order dated 26.11.2008. Thereafter, the petitioner, in terms of GR dated 16.02.2012 was given option to choose to be absorbed as language teacher for standard 6 to 8 and accordingly, the petitioner availed that option and was appointed as language teacher in Jodhpur School No.2 from 01.06.2012. The petitioner had shown the willingness to be absorbed as language teacher on 01.06.2012 and accordingly was appointed on 31.07.2012 with effect from 01.06.2012 for the same in Jodhpur School No.2. Hence, 01.06.2012 is the effective date when actual appointment of the petitioner was made in Jodhpur School No.2 for language teacher with respect to GR dated 16.02.2012. 6. The petitioner had shown the willingness to be absorbed as language teacher on 01.06.2012 and accordingly was appointed on 31.07.2012 with effect from 01.06.2012 for the same in Jodhpur School No.2. Hence, 01.06.2012 is the effective date when actual appointment of the petitioner was made in Jodhpur School No.2 for language teacher with respect to GR dated 16.02.2012. 6. The petitioner is therefore appointed in Jodhpur School No.2 in primary section prior to coming into force the Right of Children to Free and Compulsory Education Act, 2009. In exercise of the option available to the petitioner under GR dated 16.02.2012, option was given by the petitioner for being absorbed in upper primary section in standards 6 to 8 and as the post as a language teacher was available in the very school, the petitioner was appointed as a language teacher by order dated 31.07.2012. 7. Reliance placed by the petitioner on GR dated 23.05.2012 and subsequent GR dated 07.09.2013, which are governing transfer of higher secondary teachers/primary teachers/vidhya sahayaks. In the opinion of the Court, these GRs exclusively govern status and transfer of teachers. These GRs envisage types of transfers, types of vacant posts on which transfers can be effected and priorities to be assigned to the categories of transfers and candidates. Similarly, GR dated 07.09.2013, also pertaining to transfer rules, had added para-4(iii) to Prakran-K of the original GR dated 23.05.2012. 8. Learned Advocate for the petitioner claims benefit under this para-4(iii) to substantiate his argument that seniority of the petitioner in Jodhpur School No.2 with effect from 2008 is to be protected. 9. Amongst types of transfers which are specified in Prakran-K of GR dated 23.05.2012, include transfer by mutual consent on demand, inter-district transfers, transfers in cases of serious /terminal illness and administrative reasons, whereas transfer on account of being declared surplus is covered under Prakran-Kh. The subsequent GR of 2013 clearly is applicable to Prakran-K as the same provides for considering seniority when an occasion arises for subsequent transfer after having taken benefit of transfer which are covered under Prakran-K. The Court does not find any logic or reason to transport the purport of adding para- 4(iii), particularly to Prakran-K and at the same time, not given any effect to any other Prakran, viz. Prakran-Kh. Prakran-Kh. Prakran-Kh being independent in itself and based on imperial duty available with the administration regarding number of students in each school and mandating teachers to cater to number of students in each school, such Prakran-Kh is provided for. 10. For considering the transfers on the basis of being declared surplus, is governed by GR dated 26.10.2020, wherein Clause-4 of Prakran-5 reads as under:- Rule 4 of Chapter (Kh) of the resolution date – 18/02/2014. In the circumstances where teachers without qualification for teaching work in the upper primary in standard – 6 to 8, the teacher of the primary at the last serial number shall be transferred by considering standard – 1 to 8 as continuous unit if there is surplus in the school. The seniority for the purpose of transfer shall be maintained separately for standard – 1 to 5 (Lower Primary) and standard – 6 to 8 (Upper Primary). Wherever there is surplus in standard – 1 to 5 and standard – 6 to 8 i.e. in the lower primary or upper primary, the teacher of the respective division at the last serial number shall be transferred in other school by considering as surplus. At the time of transferring the surplus or deficit, the teacher with qualification for standard – 1 to 5 shall be posted at the vacancy for standard – 1 to 5 only. A surplus teacher of a particular subject in standard – 6 to 8 shall be transferred only to the school where there is a vacancy for that particular subject. Vidhyasahayaks / teachers with qualification for standard – 1 to 5 shall not be posted in standard – 6 to 8 and Vidhyasahayaks / teachers with qualification for standard – 6 to 8 shall not be posted in standard – 1 to 5. Following points shall be considered at the time of transfer of the surplus and inclusion of the Vidhyasahayaks / teachers in the school. - The teacher/Vidhyasahayak, who is surplus in the respective division, i.e. primary or upper primary shall be included as per his subject/division in the school where there is vacancy for his respective subject/division. - Vidhyasahayak/teacher shall be first included in the vacancy for respective subject / division in the other school of the same pay centre of his school where he is surplus. - Vidhyasahayak/teacher shall be first included in the vacancy for respective subject / division in the other school of the same pay centre of his school where he is surplus. - If there is no vacancy in the pay centre, he shall be included in the schools with respective subject/division in the Taluka, and if there is no vacancy in the Taluka also, he shall be included in the schools with respective subject/department in the nearest Taluka to that Taluka of the district or in any other Taluka of the district. - If there is surplus of teacher for standard – 1 to 5 even after filling up all the vacancies of standard – 1 to 5 in the district, they shall be posted as the surplus teachers in the vacant post of standard – 6 to 8. However, they shall be called in the next camp considering them as surplus teachers. They cannot claim to continue them in the upper primary division permanently. - During such inclusion, they shall be included in their original school if there are vacancies for standard – 6 to 8 otherwise in that Taluka under the pay centre of that school or in any other Taluka. Among the schools with standard – 1 to 6, the class of standard – 6 shall be closed where there are less than 20 students in standard – 6 and classes for next standard – 7 and 8 shall be begun in the schools where there are more than 20 students in standard – 6. Among the schools with standard – 1 to 7, the class of standard – 6 and 7 shall be closed where there are less than 20 students in standard – 6 and 7 and class for next standard – 8 shall be begun in the schools where there are more than 20 students in standard – 6 and 7. 11. In view of the aforesaid, as the method of transfer on being declared surplus is well explained in the aforesaid GR, the authorities were justified in treating the appointment of the petitioner in upper primary section as a language teacher from the date of his absorption as such on 31.07.2012. 12. It has come on record that another candidate, viz. Ashvin C.Patel, also teacher in language teacher in Jodhpur School No.2, is reportedly appointed as such on 05.09.2011 by direct recruitment. 12. It has come on record that another candidate, viz. Ashvin C.Patel, also teacher in language teacher in Jodhpur School No.2, is reportedly appointed as such on 05.09.2011 by direct recruitment. Hence, as appointment of Ashvin C.Patel is prior to the petitioner, the action impugned by the respondent authorities is justified. 13. Over and above, the petitioner, though aware of the consequences and effect of subject matter of this petition on Ashvin C.Patel, has chosen not to join him as party respondent. Hence, in absence of Ashvin C.Patel also, the Court could not have taken a decision, which would have otherwise affected private individual without him being joined as party, though a necessary party. 14. The contention of learned Advocate for the petitioner regarding hardships faced by the petitioner if he is transferred from Jodhpur School No.2 to Sarkhej Branch School No.2, the same being uncontroverted, the Court accepts the same. However, considering the geographical situation, where distance between Jodhpur School No.2 and Sarkhej Branch School No.2 hardly being couple of kilometers, the Court is not inclined to interfere in such order. 15. Insofar as submission of learned Advocate for the petitioner regarding overreaching the order of this Court, it would be useful to refer to chronology, where the petition was filed and registered on 03.12.2020. This Court on the very day issued notice and by assigning reasons, had issued categoric direction, part of which would read as under:- “The respondent authorities are directed to permit the petitioner to appear in the surplus camp, if any to be held without prejudice to his/her rights and contentions, however, till next date of hearing, the respondent authorities shall not issue any posting order to the petitioner. Registry is directed to provide a copy of writ of this order to the learned advocate for the petitioner through email so as to enable him to serve the same upon the respondent through Email. Direct service is permitted. 16. Against this, the only explanation offered as is reproduced in preceding paras, in the opinion of the Court, is not sufficient explanation, more particularly when in the additional affidavit, the petitioner has stated as under:- “1. That the Hon’ble High Court has issued Notice in the present matter and has granted interim relief by order dtd. 16. Against this, the only explanation offered as is reproduced in preceding paras, in the opinion of the Court, is not sufficient explanation, more particularly when in the additional affidavit, the petitioner has stated as under:- “1. That the Hon’ble High Court has issued Notice in the present matter and has granted interim relief by order dtd. 3-12-2020 (Coram: Bhargav D.Karia, J) as per ANNEXURE-I. As soon as the said order was uploaded on the website of the Hon’ble High Court on 4-12-2020 at about 12.00 noon, the petitioner’s advocate sent the copy thereof to the respondent no.3 by email at 12.19 pm on 4-12-2020 as per ANNEXUREII Colly. The petitioner also brought it to the notice of the officer who was conducting the Camp on 4-12.2020. Even then the petitioner was issued the order of transfer dtd. 4-12-2020 as per ANNEXURE-III, in gross violation of the Hon’ble High Court’s order and he was wrongfully relieved from his present school– Jodhpur Primary School No.2 on 7-12-2020 by the Head Master as per ANNEXURE-IV. As a disciplined employee, the petitioner has obeyed the said orders under protest and he has joined duties at the place of transfer–Sarkhej Branch School No.2, on 8-12-2020 though he is BLIND and though the impugned order is contrary to the statutory policy of the State Government laid down in G.R. dtd. 25-5-2012, and contrary to the Hon’ble High Court’s interim order. The said order is therefore required to be quashed and set aside the petition is required to be allowed with exemplary costs in the interest of justice.” 17. In the reply, there is no explanation to the aforesaid allegations made on oath and the Court is, therefore, prima facie of the view that when order dated 04.12.2020 was passed posting the petitioner from Jodhpur School No.2 to Sarkhej Branch School No.2, the respondents were aware of the directions issued by this Court, despite which, order came to be passed and hence, the respondent authorities and author of order dated 04.12.2020 have overreached order of this Court dated 03.12.2020 in the present petition. 18. In view of the aforesaid, it would be appropriate to direct Secretary, Education Department to undertake an inquiry with regard to conduct of the author of order dated 04.12.2020 and to place report of such inquiry on the record of this case. 18. In view of the aforesaid, it would be appropriate to direct Secretary, Education Department to undertake an inquiry with regard to conduct of the author of order dated 04.12.2020 and to place report of such inquiry on the record of this case. Upon such report being produced, Registry to place such report before this Court for its perusal. 19. With the aforesaid reasonings, the Court does not find any reason for interfering with the procedure and the order of transfer of the petitioner from Jodhpur School No.2 to Sarkhej Branch School No.2. The petition therefore stands dismissed. Notice is discharged. Interim relief granted earlier stands vacated. No order as to costs.