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Gujarat High Court · body

2022 DIGILAW 13 (GUJ)

Nalinkumar Natwarlal Patel v. State of Gujarat

2022-01-04

BIREN VAISHNAV

body2022
JUDGMENT : Biren Vaishnav, J. 1. Heard Mr. Ramnandan Singh learned advocate for the petitioner, Ms. Surbhi Bhati learned AGP for the respondent-State and Mr. Manish J. Patel learned advocate for the respondent no. 2. 2. In this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs: "(A) Your Lordships may be pleased to issue writ of Mandamus or any other appropriate writ, order or direction, directing the respondent Nos. 1 and 2 to transfer the petitioner at Prantij-2 Primary School as the petitioner is the only senior most surplus teacher in his group and is entitled to be given first priority in transfer and vacancy at Prantij-2 School was very much there on 25.11.2020 when the list of vacancy of teachers eligible for teaching Std. 1 to 5 was published by Taluka Primary Education Officer, as such times was pointed out by the petitioner in his representations dated 25.11.2020 and 26.11.2020. (B) Your Lordships may be pleased to deprecate the respondent authorities for not reflecting the vacancy of one teacher at Prantij-2 Primary School in Form No. 2 dated 25.11.2020 issued by Taluka Primary Education Officer, Prantij, although there was vacancy of a teacher for Std. 1 to 5 in the camp which was held on 26.11.2020 by holding that such action was illegal and malafide. (C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the respondent Nos. 1 and 2 not to issue posting order of the basis of appearance of the petitioner in the camp, held on 26.11.2020 and be pleased to direct the respondent authorities to permit the petitioner to continue to render his services at Mamroli Primary School." 3. Mr. Ramnandan Singh learned advocate for the petitioner would submit that the petitioner was appointed as a Vidhya Sahayak on 10.05.2005. He would draw the attention of the Court to the appointment order (page 27), wherein, the petitioner was appointed at Maninagar Narmada Vasahat Primary School, District: Vadodara. The petitioner was thereafter transferred by an order dated 29.08.2012 to Mamroli Primary School, Prantij. Mr. Ramnandan Singh would submit that on 26.07.2019 the school at Mamroli was closed. In support thereto, he would rely on the document at page 54. He would submit that a list of surplus teachers was drawn on 21.11.2020 wherein the petitioner along with the respondent no. Mr. Ramnandan Singh would submit that on 26.07.2019 the school at Mamroli was closed. In support thereto, he would rely on the document at page 54. He would submit that a list of surplus teachers was drawn on 21.11.2020 wherein the petitioner along with the respondent no. 3 was shown as one of the teachers to be called at the camp. A list of schools was published on 25.11.2020 wherein only schools of Prantij-1 was shown and not of Prantij-2. Applications were made by the petitioner (page 89) dated 25.11.2020 and of the same date (page 93). In support of his submission, Mr. Ramnandan Singh would rely on the resolution dated 23.05.2012, especially sub-clauses (5) to (8) of Clause-Kh of the resolution. In short, Mr. Ramnandan Singh would submit that seniority ought to be respected and the petitioner ought to have been preferred for a transfer for a place closer to her first appointment and not the respondent no. 3. 4. Mr. Manish J. Patel learned counsel appearing for the respondent-Taluka Primary Education Officer has drawn the attention of the Court to the reply and also to the resolution dated 26.10.2020 and submitted that in cases where schools have been merged, the principle of seniority will have no application. The petition, therefore, in Mr. Patel's submission is misconceived. 5. Considering the submissions made by the learned counsel for the parties, especially when interpretation is sought to be pressed into service by the petitioner to the resolution dated 23.05.2012, reading this in context of the resolution dated 26.10.2020, it is evident that the subsequent resolution amends the resolution dated 23.05.2012. The relevant portion of the resolution which is at page 61 of the paper book, would indicate that there is a merger of schools. As a request of such merger, the respondent no. 3 and other teachers of that school would be retained at the merged schools irrespective of the question of seniority. Reading of the reply would further indicate that when the schools have been merged, the principle of common seniority has to be considered. What is also explained is that when the Juna Bakarpur Primary School merged in Prantij-2, two teachers of the school were absorbed in the Prantij-2 school. Therefore there was no vacancy and therefore the petitioner could not have been appointed. What is also explained is that when the Juna Bakarpur Primary School merged in Prantij-2, two teachers of the school were absorbed in the Prantij-2 school. Therefore there was no vacancy and therefore the petitioner could not have been appointed. Even otherwise the principles of seniority in view of the resolution dated 23.05.2012 is misconceived, the petition is therefore dismissed with an observation that it will be open for the petitioner to apply for transfer in the camp that may ensue in future and the petitioner's case shall be considered in accordance with the policy. 6. The petition is disposed of in the above terms.