JUDGMENT : 1. Rule returnable forthwith. Learned advocates appearing for the respondents waive service of notice of rule. 1.1 All these petitions challenge the Government Resolution dated 09.10.2019 passed by the State Government by which paragraph no. 4 of the resolution dated 27.08.2012 has been cancelled and it is laid down that in the concerned school, if the strength of 150 students in standards 1 to 5 or 100 students in standard 6 to 8 or 250 students in standards 1 to 8 is not maintained, then the Head Teacher shall be declared as surplus and shall be liable to be transferred as excess. 1.1 Clause 2.1 of the Government Resolution provides for such transfer. By virtue of the operation of the said clause, transfer orders have been made of various Head Teachers which too are the subject matter of challenge in these petitions though, each petition may have a separate prayer in the respective petitions. 2. Facts in brief would indicate as under: 2.1 It is the case of the petitioners that the Right of Children to Free and Compulsory Education Act, 2009 (for short ‘the RTE Act’) was enacted and brought into force on 01.04.2010. According to the Schedule of the Act, it is compulsory to have one Head Teacher in standards 1 to 5 if the admitted children are above 150 and one Head Teacher in standards 6 to 8 if the admitted children are above 100. According to the petitioners, with a view to enforce these provisions, a separate cadre of Head Teachers – Class III in the subordinate service of the Directorate of Primary Education was created. Recruitment rules were framed vide notification dated 18.01.2012 which provided for appointment by way of promotion and by way of direct selection. 2.2 By a Government Resolution dated 22.08.2012, past service of the teachers who are appointed as Head Teachers were treated as continuous. It also provided for guidelines for the purposes of transfer which was in accordance with the GAD resolution of 25.10.2000 in place of Class-III employees. It is the case of the petitioners that on being appointed as Head Teachers it was understood that they would be governed by these service conditions. However, by the impugned resolution, transfer of Head Teachers is now like any other teacher by holding camps. 3. Mr. Shalin Mehta, learned Senior Advocate, Mr. K.B. Pujara, learned advocate, Mr. It is the case of the petitioners that on being appointed as Head Teachers it was understood that they would be governed by these service conditions. However, by the impugned resolution, transfer of Head Teachers is now like any other teacher by holding camps. 3. Mr. Shalin Mehta, learned Senior Advocate, Mr. K.B. Pujara, learned advocate, Mr. Gaurav Chudasma, learned advocate have led the arguments for and on behalf of all the learned counsels for the petitioners. 4. Mr. Mehta, learned Senior Advocate appearing with Ms. Shikha Panchal and Ms. Aditi Raol, learned advocates would make the following submissions: (I) That by the impugned resolution of 09.10.2019, an inconsistent provision has been introduced which is contrary to the norms prescribed in the RTE Act and the rules. The rules clearly prescribe that there must be one Head Teacher per 150 students of lower primary division and 1 for 100 students of upper primary division. There is no convergence of lower primary division and upper primary division. By the resolution under challenge, in addition to the above ratio, one more head is added by which lower and upper primary divisions have been clubbed together allowing 1 Head Teacher per 250 students of both lower and upper primary divisions which does away the possibility of having two Head Teachers, one each for lower primary and upper primary sections. (II) Relying on the provisions of Sections 19 and 25 of the RTE Act, he would submit that when the same is read with the Schedule of the Act, it clearly provides that there shall be one Head Teacher if more than 150 students’ strength is in standards 1 to 5. Similarly, if there are more than 100 students in standards 6 to 8 there will be one Head Teacher. The RTE Act requires the State Government to bifurcate the primary sections in two divisions. (III) It is in light of the provisions of Section 23 of the Gujarat Primary Education Act that the notification has been issued notifying recruitment rules for Head Teachers. Reading Rule 17 of the Rules, Mr. Mehta would submit that as per Rule 17 the appointment of Head Teachers has to be in accordance with the RTE Rules and therefore there is confusion created by virtue of the resolution dated 09.10.2019. Reading Rule 17 of the Rules, Mr. Mehta would submit that as per Rule 17 the appointment of Head Teachers has to be in accordance with the RTE Rules and therefore there is confusion created by virtue of the resolution dated 09.10.2019. (IV) That inspite of there being a clear distinction between the requirements of minimum qualifications for Teachers and Head Teachers for lower primary schools and upper primary schools, by way of a resolution dated 09.10.2019, what is proposed is not to appoint separate teachers for each section which is contrary to the mandate of the RTE Act. This would therefore result in several Head Teachers being displaced and declared as surplus. 5. Mr. K.B Pujara, learned advocate appearing in Special Civil Application No. 345 of 2020 would submit drawing the attention of the court to the resolution dated 09.10.2019 together with the decision of the Director of Primary Education dated 29.11.2019 that the transfer orders passed on 02.01.2020 need to be quashed and set aside inasmuch as they are in contravention of the provisions of the RTE Act. 5.1 Mr. Pujara would further submit that if Section 2(f) of the RTE Act is read, it defines ‘elementary education’ to mean education from 1st class to 8th class. Sections 19 and 25 of the Act mandate a school to fulfill norms and standards prescribed in the Schedule of the Act. Subsection 2 of Section 19 indicates that on an establishment of the school and on the commencement of the Act steps shall be taken by such schools to fulfill norms within a period of three years and since the Act came into force in 2010, from the year 2013 the provisions of the Act became mandatory for the schools to comply with. 5.2 Mr. Pujara too would rely on Rule 17 of the Rules framed under the RTE Act and submit that the rule specifically indicates that there shall be a separate establishment of Head Teachers for sections 1 to 5 and 6 to 8. That being so, the provision in the notification of 09.10.2019 is bad. 5.3 Mr. Pujara would submit that by the government resolution dated 27.08.2012, it was decided that if the existing primary teachers apply for direct selection as Head Teachers they will get pay protection and continuity of service. He would read paragraph no. That being so, the provision in the notification of 09.10.2019 is bad. 5.3 Mr. Pujara would submit that by the government resolution dated 27.08.2012, it was decided that if the existing primary teachers apply for direct selection as Head Teachers they will get pay protection and continuity of service. He would read paragraph no. 4 of the Government Resolution dated 27.08.2012 and indicate that since the cadre of Head Teachers being a separate cadre, for the purpose of transfer the resolution dated 25. of the GAD would be applicable. 5.4 Inviting the court’s attention to various appointment orders, Mr. Pujara would submit that while appointing teachers as Head Teachers in the years 2012 to 2017 candidates were given choice of schools as per their merit. Accordingly, the petitioners made choice of the school keeping in mind several factors such as place of employment of the spouse, the availability of facility of education etc. The resolution dated 09.10.2019 has arbitrarily cancelled paragraph no. 4 of the resolution dated 27.08.2012. This violates the equitable principle of estoppel. The petitioners have been compelled to alter their position to their disadvantage. At the time of appointment, the petitioners were told that they will be governed by the transfer policy of the GAD, however, had they been told at the time of their appointment that as Head Teachers their transfer shall be based on the strength of the children and consequential surplasage, the petitioners would not have accepted their appointments as Head Teachers. He would rely on the decision and orders passed by the Apex Court in the case of Environmental and Consumer Protection Foundation vs. Delhi Administration and Others reported in (2011) 7 SCC 55 and (2012) 10 SCC 197 . 5.5 Mr. Pujara would submit that the respondents have given a go-bye to the statutory requirement as per the RTE Act. According to Mr. Pujara, the arbitrariness in the impugned action is also evident from the fact that on the one hand the respondents have stated that there are as many as 720 schools which have more than 300 students and yet no Head Teacher and on the other hand, respondents have issued an office order on 16.05.2018 stating that of the 11,397 sanctioned posts of Head Teachers 1,929 posts are cancelled. 5.6 Highlighting the case of the petitioners no. 4, 8, 9, 13, 14 & 15, Mr. 5.6 Highlighting the case of the petitioners no. 4, 8, 9, 13, 14 & 15, Mr. Pujara would submit that such petitioners had availed the benefit of couple case by being posted in the same school or pay center and such benefit is available only once in the entire career but by the impugned resolution they have been transferred to various places. Similarly, in case of some petitioners though they are teachers of Gujarati medium schools the impugned orders have resulted into they being transferred as Head Teachers of Urdu medium or Hindi medium or English medium schools. Petitioners no. 1 and 14 are such cases. He would rely on the decision in the case of Labana Lalitkumar Kanwarji vs. State of Gujarat [ 2019 (2) GLH 307 ]. 6. Mr. Gaurav Chudasma, learned advocate in addition to these submissions would submit that as per the government resolution dated 12.07.2017 there was a clear stipulation that in light of the ratio of recruitment, their seniority shall be maintained separately inasmuch as those Head Teachers who were in standard 1 to 5 will have a separate seniority as compared to those Head Teachers in standards 6 to 8. This obviously required that there should be no clubbing of the two divisions. 7. Ms. Manisha Lavkumar, learned Government Pleader appearing with Ms. Shruti Pathak, learned AGP for the respondent State in all these petitions would submit that reading section 2(f) of the RTE Act would indicate that the elementary education is for standards 1 to 8. The provisions of the RTE Act mandates that there shall be one Head Teacher for standards 1 to 5 and/or one Head Teacher for standards 6 to 8. By the resolution under challenge, that stipulation has not been done away with. With a view to optimize the human resources, as the State Government’s expectations from the Head Teachers has not been met, the Government is required to make maximum utilization of the capacity of the employee. For this purpose, where the number of students was as per the norms of the RTE Act, 2009 and the number of students in the school where they were performing duty were not as per the norms, they are to be considered as surplus as required by the policy of 09.10.2019. For this purpose, where the number of students was as per the norms of the RTE Act, 2009 and the number of students in the school where they were performing duty were not as per the norms, they are to be considered as surplus as required by the policy of 09.10.2019. Although the figure of 250 has not been taken into consideration to transfer Head Teachers, if the court may direct then the State Government may remove the number of 250 students from the Government Resolution dated 09.10.2019. The policy has been framed considering the larger interest of the affected at the same time administrative convenience is given top priority. A policy of transfer cannot be questioned on the ground of protecting self interests. 7.1 Relying upon the affidavit-in-reply filed in Special Civil Application No. 345 of 2020, she would submit that the department cannot be questioned by raising a hyper technical contention of clubbing the two divisions together. The appointment orders as annexed in the petition would clearly indicate that these appointments are in accordance with the policies which can be in vogue from time to time. This therefore does not mandate the State to follow the transfer policy as per the resolution of 27.08.2012. The State can in accordance with the terms of appointment make policies looking at the administrative convenience of the State with respect to transfer policy of the Head Teachers. 8. Having considered the submissions made by the learned advocates for the respective parties, the legality of the government resolution dated 09.10.2019 and the consequential orders of transfer need to be considered in light of the provisions of the RTE Act. The RTE Act is an act to provide for free and compulsory education to all children of the age of 6 to 14 years. The term elementary education has been defined in Section 2(f) of the RTE Act which reads as under: 2(f) - “elementary education” means the education from first class to eighth class; 8.1 Section 19 of the Act provides that no school shall be established or recognized under Section 18 unless it fulfills the norms and standards specified in the Schedule. The term elementary education has been defined in Section 2(f) of the RTE Act which reads as under: 2(f) - “elementary education” means the education from first class to eighth class; 8.1 Section 19 of the Act provides that no school shall be established or recognized under Section 18 unless it fulfills the norms and standards specified in the Schedule. Sub-section 2 of Section 19 provides that where a school established before the commencement of this Act does not fulfill the norms and standards specified in the Schedule it shall take steps to fulfill such norms and standards within a period of three years from the date of commencement of the Act. Section 19 reads as under: “19. Norms and standards for school.—(1) No school shall be established, or recognised under section 18, unless it fulfils the norms and standards specified in the Schedule. (2) Where a school established before the commencement of this Act does not fulfil the norms and standards specified in the Schedule, it shall take steps to fulfil such norms and standards at its own expenses, within a period of three years from the date of such commencement. (3) Where a school fails to fulfil the norms and standards within the period specified under subsection (2), the authority prescribed under subsection (1) of section 18 shall withdraw recognition granted to such school in the manner specified under sub-section (3) thereof. (4) With effect from the date of withdrawal of recognition under sub-section (3), no school shall continue to function. (5) Any person who continues to run a school after the recognition is withdrawn, shall be liable to fine which may extend to one lakh rupees and in case of continuing contraventions, to a fine of ten thousand rupees for each day during which such contravention continues.” 8.2 Section 25 provides for a pupil teacher ratio to be maintained as specified in the Schedule. The same reads as under: “25. Pupil-Teacher Ratio.—(1) 1 [Within three years] from the date of commencement of this Act, the appropriate Government and the local authority shall ensure that the Pupil-Teacher Ratio, as specified in the Schedule, is maintained in each school.” 8.3 The Schedule to the Act provides that the number of teachers for first class to fifth class and sixth class to eighth class has to be as prescribed. It provides that for first to fifth standard when the children are above 150 the school has to have one Head Teacher. Similarly for standards 6 to 8 there should be a full time Head Teacher. The relevant portion of the Schedule reads as under: Sl. No. Item Norms and Standards 1. Numbers of teachers: (a) For first class to fifth class Admitted children Number of teachers Up to Sixty Two Between sixty-one to ninety Three Between Ninety-one to one hundred and twenty Four Between One hundred and twenty-one to two hundred Five Above One hundred and fifty children Five plus one Headteacher Above Two hundred children Pupil-Teacher Ratio (excluding Head-teacher) shall not exceed forty. (b) For sixth class to eighth class (1) At least one teacher per class so that there shall be at least one teacher each for— (i) Science and Mathematics; (ii) Social Studies; (iii) Languages. (2) At least one teacher for every thirty-five children. (3) Where admission of children is above one hundred— (i) a full time head-teacher; (ii) part time instructors for— (A) Art Education; (B) Health and Physical Education; (C) Work Education. 2. Building All-weather building consisting of— (i) at least one class-room for every teacher and an office-cum-store-cum-Head teacher’s room; (ii) barrier-free access; (iii) separate toilets for boys and girls; (iv) safe and adequate drinking water facility to all children; (v) a kitchen where mid-day meal is cooked in the school; (vi) Playground; (vii) arrangements for securing the school building by boundary wall or fencing. 3. (vi) Playground; (vii) arrangements for securing the school building by boundary wall or fencing. (i) two hundred working days for first class to fifth class; (ii) two hundred and twenty working days for sixth class to eighth class; (iii) eight hundred instructional hours per academic year for first class to fifth class; (iv) one thousand instructional hours per academic year for sixth class to eighth class. 4. Minimum number of working hours per week for the teacher forty-five teaching including preparation hours. 5. Teaching learning equipment Shall be provided to each class as required 6. Library There shall be a library in each school providing newspaper, magazines and books on all subjects, including story-books 7. Play material, games and sports equipment Shall be provided to each class as required. 9. 5. Teaching learning equipment Shall be provided to each class as required 6. Library There shall be a library in each school providing newspaper, magazines and books on all subjects, including story-books 7. Play material, games and sports equipment Shall be provided to each class as required. 9. The resolution dated 09.10.2019 therefore has to be read in that context as it was so framed with the purpose of furtherance of the provisions of the Act. The impugned provision of the Government Resolution indicates that an additional requirement has been added so as to bring in a concept of clubbing the primary division and the upper primary division together to indicate that there can be one Head Teacher if the strength of students in standards 1 to 8 is 250 or more. This was never contemplated or is evident from the statutory provisions under the RTE Act. 9.1 Even if the provisions of Rule 4 of the RTE Rules is seen, what is evident is that a school development plan has to contain the following details: Preparation of School Development Plan.- (1) The School Management Committee shall prepare a School Development Plan at least three months before the end of the financial year in which it is first constituted under the Act. (2) The School Development Plan shall be a three year plan comprising three annual sub plans. (3) The School Development Plan, shall contain the following details, namely:- (a) estimates of class-wise enrolment for each year; (b) requirement of the number of additional teachers, including Head Teachers, subject teachers and part time instructors, separately for Classes I to V and for classes VI to VIII, calculated with reference to the norms specified in the Schedule: (c) physical requirement of additional infrastructure and equipments, calculated with reference to the norms and standards specified in the Schedule; (d) financial requirement in respect of (b) and (c) above, including for providing special training facility specified in section 4, entitlements of children such as free text books and uniforms, and any other additional requirement for fulfilling the responsibilities of the school under the Act. (4) The School Development Plan shall be signed by the chairperson or vice chairperson and convenor of the School Management Committee and submitted to the local authority before the end of the financial year in which it is prepared. (4) The School Development Plan shall be signed by the chairperson or vice chairperson and convenor of the School Management Committee and submitted to the local authority before the end of the financial year in which it is prepared. [Emphasis Supplied] 9.2 The details include therefore the requirement of number of additional teachers separately for standards 1 to 5 and for standards 6 to 8, calculated with reference to the norms specified in the Schedule. 10. Coming to the recruitment rules of Head Teachers of the year 2012, which provides for direct selection as well as promotion, the intention obviously was to create a separate cadre of Head Teachers, Class-III in the subordinate service of the Directorate of Primary Education. Even the rule provision namely Rule 17 of the Right of Children to Free and Compulsory Education Rules, 2012 provides that one Head Teacher is to be appointed if there are more than 150 students in standards 1 to 5 and 1 full head time teacher is to be appointed for 100 students in standards 6 to 8. The emphasis on reading the language of the rule is that there has to be separate appointments for each division. 11. It is in light of these provisions, the State took a conscious decision while framing the government resolution dated 27.08.2012 indicating conditions of service and benefits to be given to Head Teachers. Amongst other things it provided that those teachers who opted for appointments as Head Teacher in the schools will not be asked to resign but will be relieved inasmuch as their past service as teachers would be treated as continuous. Clause 4 of the resolution when translated reads as under: “4. Since the cadre of Head Teachers is a separate cadre the guidelines set out for employees of the class-III department of the Government vide resolution dated 25.10.2000 and those that may be made from time to time shall be made applicable.” 12. The cadre of Head Teachers being a separate cadre in the matter of transfer, the provisions of the Government Resolution dated 25.10.2000 applicable to Class-III employees of the State or such other instructions made from time to time shall be applicable. Obviously therefore when teachers promoted or directly recruited as Head Teachers sought such appointments, they expected their service conditions to be maintained. Obviously therefore when teachers promoted or directly recruited as Head Teachers sought such appointments, they expected their service conditions to be maintained. Their appointment orders one such being on record indicates that since their cadre is a different cadre, their conditions of transfer shall be governed by the government resolution of the State dated 25.10.2000. 13. The State cannot under recourse to a litigation seek a window to change these conditions of service when there is no rationale to do so. In fact, what is evident from reading the contents of Special Civil Application No. 345 of 2020 is that bringing in such change in the transfer conditions which were otherwise covered by the resolution of 25.10.2000 has resulted in transfer of Head Teacher who were appointed in Gujarati Medium Schools being displaced and transferred to Urdu/Hindi/English Medium schools. It has also resulted in disturbing couple transfers which is a benefit given to such teachers once in a lifetime. Teachers who had secured the benefit of such transfers are by virtue of the clause in the resolution of 09.10.2019 been made to separate even when their applications for couple transfer were considered in the past. 14. For the aforesaid reasons therefore, the resolution dated 09.10.2019 and the decision dated 29.11.2019 issued by the State and the Director of Primary Education are quashed and set aside. Consequentially the impugned orders of transfer pursuant to the resolution dated 09.10.2019 in the respective petitions are quashed and set aside. Petitions are allowed. Rule is made absolute. Civil Applications are disposed of.