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2022 DIGILAW 964 (GUJ)

Patel Linaben Kacharalal v. State of Gujarat

2022-08-22

BIREN VAISHNAV

body2022
JUDGMENT : 1. Rule. Learned AGP Mr. Sharma waives service of notice of Rule for the respondent Nos.1 & 2 while Mr. Munshaw, learned advocate waives service of notice of Rule for respondent No.3. 2. By way of this Petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs: "10(b) to direct the respondents to forthwith relieve the petitioner from Madhutra Primary School, Tal: Santalpur and allow her to join at Laxmipura (Vamaiya) Primary School, Tal.: Saraswati, in compliance with the order of respondent No.3 dated 2.7.2022 at Annexure - I which is in compliance with the judgment and order of the Hon'ble High Court dated 5.5.2022 passed in SCA No.10739/2021 (Coram: Biren Vaishnav J.) at Annexure - H. 10(c). to allow the petitioner to participate in the Camp that may be held by the respondents as an excess teacher as stated in her transfer order dated 1.12.2020 to Madhutra Primary School, Tal: Santalpur at Annexure - D by considering her seniority of Koita Primary School." 3. The facts in brief are as under: 3.1. The petitioner is a Primary Teacher. She was serving at Vaghel and by an order dated 18.2.2007, she was transferred from Vaghel to Koita Primary School. On being declared surplus at Koita, she was transferred to Haripura Primary School Taluka Randhanpur by an order dated 06.04.2017. 3.2. The order dated 6.4.2017 was cancelled and she was transferred to Lilapur Primary School, Taluka Saraswati by an order dated 05.06.2017. 3.3. By order dated 01.12.2020 the petitioner was transferred from Lilapur Primary School (Koita) to Madhutra Primary School, Taluka Santalpur. This was as the petitioner was declared as Surplus and then she was posted at Madhutra to teach in Std. 6 to 8. The petitioner did not report at Madhutra. 3.4. By an order dated 05.06.2021, the petitioner was transferred from Lilapur to Laxmipura (Vamaaiya) Primary School. This order stated that the order of transfer was at her request. 3.5. On 23.7.2021, this order of transfer from Lilapur to Laxmipura was cancelled as according to the authorities, the order was passed by the DEO without authority of law. The petitioner on cancellation was therefore asked to report and was accordingly relieved and joined Lilapur School. 3.6. This order stated that the order of transfer was at her request. 3.5. On 23.7.2021, this order of transfer from Lilapur to Laxmipura was cancelled as according to the authorities, the order was passed by the DEO without authority of law. The petitioner on cancellation was therefore asked to report and was accordingly relieved and joined Lilapur School. 3.6. The order of cancellation i.e. the order cancelling the petitioner's transfer from Lilapur to Laxmipura was challenged by the petitioner by filing Special Civil Application No.10739 of 2021. The Petition was allowed by an order dated 5.5.2022 and is the subject matter of Appeal in LPA No.774 of 2022 scheduled to be heard, as per the order impugned in the present proceedings on 24.08.2022. 3.7. The Respondent No.3, in compliance of the order in the Petition and subject to further orders in Appeal has passed an order that the petitioner be posted at Laxmipura in compliance of the directions of the Court, subject to the orders in LPA. (Since the order cancelling the petitioner's transfer from Lilapur to Laxmipura stood quashed). 3.8. The grievance of the petitioner in the present Petition appears to be that despite the order of relieving the petitioner to join at Laxmipura, since no specific instructions that the petitioner be relieved from Madhutra Primary School are passed, the petitioner is not being relieved from Madhutra (the place where she was transferred vide order dated 01/12/2020) before she was transferred to Lilapur though she had reported at Madhutra on 29.07.2021, after the cancellation of her transfer from Lilapur to Laxmipura. 4. Mr. K.B. Pujara, learned advocate for the petitioner would submit that once the order cancelling the transfer of the petitioner from Lilapur to Laxmipura stood cancelled she should be allowed to report at Laxmipura. The natural consequence should follow and merely because no instructions to relieve the petitioner from Madhutra are mentioned the order is not being implemented. 5. Mr. H.S. Munshaw appearing of the District Primary Education Officer, Patan would extensively read the affidavit-in-reply filed by the DPEO. He would submit that the petitioner was posted at Lilapur vide an order dated 05.06.2017 and the petitioner joined at Lilapur. Based on the Government Resolution dated 23.05.2012 the student strength and the determination of surplus teachers was done and the petitioner was declared surplus in a primary school (Std. He would submit that the petitioner was posted at Lilapur vide an order dated 05.06.2017 and the petitioner joined at Lilapur. Based on the Government Resolution dated 23.05.2012 the student strength and the determination of surplus teachers was done and the petitioner was declared surplus in a primary school (Std. 1 to 5) at village Lilapur, Taluka Saraswati and was required to attend Camp for transfer of surplus teachers of Std. 1 to 5. Since all the posts of Primary Teachers were filled up, the petitioner was required to be posted in the Upper Primary Section (Std. 6 to 8) and was therefore by an order dated 01.12.2020 posted at Madhutra, Taluka Santalpur, District Patan. The petitioner did not obey the order of transfer and report at Madhutra and continued at Lilapur. 5.1. The then District Primary Education Officer favoured the petitioner by accepting her application dated 26.04.2021 and posted her at Laxmipura Primary School by order dated 05.06.2021 as if it was a request transfer when it is well settled that the DPEO cannot accept request Transfers and the same is under the authority of the Director of Primary Education. The petitioner reported at Laxmipura School pursuant to the order of transfer dated 05.06.2021 without reporting at Madhutra and therefore the order of transferring the petitioner by the DPEO from Lilapur to Laxmipura was cancelled vide order dated 23.07.2021 and the petitioner was directed to report back to Lilapur that she did. 5.2. Mr. Munshaw would submit that since the order of transfer was cancelled, the petitioner reported at Lilapur on 28.07.2012, as is evident from the communication dated 28.07.2021 of the Head Master Lilapur (Koita) Primary School, Taluka Saraswati. Even when the petitioner was transferred to Madhutra vide the earlier order dated 01.12.2020, the Lilapur Headmaster had relieved her to join at Madhutra where she did not join then and only when the order of transfer to Laxmipura was cancelled she reported on 29.07.2021 after more than 7 months. 5.3. Mr. Munshaw would submit that despite the order of transfer to Madhutra on 01.12.2020 she did not join. She continued at Lilapur till she was favoured by a transfer order dated 05.06.2021 and posted at Laxmipura as if it was at her own request, compelling the authorities to cancel the order of transfer. She, then reported at Lilapur on 28.07.2021 and then Madhutra at 29.07.2021. She continued at Lilapur till she was favoured by a transfer order dated 05.06.2021 and posted at Laxmipura as if it was at her own request, compelling the authorities to cancel the order of transfer. She, then reported at Lilapur on 28.07.2021 and then Madhutra at 29.07.2021. The order posting her at Laxmipura was contrary to the GR dated 23.05.2021 and therefore the same was rightly cancelled. 6. The reading of the facts and the submissions would make it evident that in the Petition filed by the petitioner, namely Special Civil Application No.10739 of 2021 which was decided with a group of other petitions, the Court had allowed the Petitions and the orders of cancellation of transfers were set aside and a direction was issued that once these cancellation of transfers were set aside necessary compliance was to be made within six weeks from the date of receipt of the order. 7. The order dated 05/05/2022 is a subject matter of challenge in the appeals being Letters Patent Appeal No.772 of 2022 and allied Appeals and as far as the present petitioner is concerned, the Letters Patent Appeal is LPA No.774 of 2022. 8. Reading of the order dated 02.07.2022 passed by the District Primary Education Officer indicates that in compliance of the order of this court, since the order dated 23.07.2021, cancelling the transfer of the petitioner from Lilapur to Laxmipura stood quashed, the petitioner has to be relieved so that she can join at Laxmipura in accordance with the original order of transfer dated 05.06.2021. 9. To recapitulate, the sequence of the orders of transfer would indicate as under: 9.1. The petitioner was transferred from Koita Primary School to Haripura Primary School, Taluka Randhanpur vide an order dated 06.04.2017. 9.2. The order was cancelled and the petitioner was transferred to Lilapur Primary School vide order dated 05.06.2017. 9.3. She was then on 01.12.2020 transferred to standard 6 to 8 at Madhutra Primary School where she did not report. That order was never implemented. The stand of the petitioner is that the respondents never enforced the order and the stand of the respondent is that petitioner did not report at her transferred place at Madhutra. 10. Be that as it may, the petitioner was then transferred to Laxmipura vide order dated 05.06.2021 where she reported on being relieved from Laxmipura. The stand of the petitioner is that the respondents never enforced the order and the stand of the respondent is that petitioner did not report at her transferred place at Madhutra. 10. Be that as it may, the petitioner was then transferred to Laxmipura vide order dated 05.06.2021 where she reported on being relieved from Laxmipura. The petitioner, as is evident from the communication dated 07.06.2021 was relieved by the Lilapur School to report at Laxmipura. 11. After she reported at Laxmipura, the order of transfer to Laxmipura stood cancelled vide order dated 23.07.2021 which was a subject matter of Special Civil Application No.10739 of 2021. The order cancelling the transfer to Laxmipura was set aside and therefore it was incumbent upon the respondent No.3 to post her back at Laxmipura in compliance of the directions of this Court. In the interregnum, it appears from the communications dated 28.07.2021 and 29.07.2021 annexed to the Petition which are communications of the Principal of Lilapur School and the Head Master of the Madhutra School respectively relieving the petitioner from Lilapur and the petitioner joining at Madhutra. In other words, once the order of transfer dated 05.06.2021 to Laxmipura stood cancelled vide order dated 23.07.2021, the petitioner reported at Lilapur from where she was transferred to Laxmipura and reported at Madhutra, on 29.07.2021 when according to the respondent No.3, she should have reported as per order dated 01.12.2020. This also was one of the reasons behind cancelling the order of transfer dated 05.06.2021 vide order dated 23.07.2021. 12. Once the Court quashed the order of cancellation of transfer to Laxmipura and directed reporting of compliance, the respondent No.3 has, in compliance therefore vide an order dated 02.07.2022 posted the petitioner back at Laxmipura, albeit subject to the further orders in LPA No.774 of 2022 which is to come up for hearing according to the deponent DPEO in the reply on 24.08.2022. 13. 13. The question of the administrative issue that appears to be a roadblock in implementation as is culled out from the affidavit in reply of the DPEO is that the petitioner never having reported at Madhutra pursuant to the first order of transfer on 01.12.2020 and reaped the benefit of a subsequent illegal order of transfer to Laxmipura by order dated 05.06.2021 (which stands in view of the order of cancellation of that transfer to Laxmipura having been quashed), the order cannot be implemented administratively unless Madhutra School relieves her but the School is accordingly not relieving her. 14. The controversy is for the period in the interregnum i.e. in between the episode of transfer from Lilapur to Madhutra, then Lilapur to Laxmipura and the subsequent event of the order of transfer to Laxmipura being cancelled and the cancellation now being set aside and the compliance thereof vide order dated 02.07.2022 by the DPEO. 15. The chain of events do indicate that the petitioner had reported at Madhutra on 29.07.2021 after the order of transfer from Lilapur to Laxmipura was cancelled vide order dated 23.07.2021. 16. That order of cancellation of transfer from Lilapur to Laxmipura having been cancelled and when the DPEO had in compliance therefore passed an order on 02.07.2022 to comply with such orders, nothing should hold the DPEO back in passing necessary consequential orders directing the Madhutra School to relieve the petitioner in order to be an effective compliance of the order of this Court of 05.05.2022 and the order of the DPEO dated 02.07.2022. 17. The petitioner should be forthwith permitted to report at Laxmipura School. The communication dated 18.07.2022 addressed by the DPEO to the Head Master, Lilapur, which Mr. Pujara has placed on record during the course of hearing indicates that an explanation has been sought from the School on the issue of relieving the petitioner from Lilapur School to be given to the Taluka Primary Education Officer, on two counts namely: (A). That why was the petitioner not relieved from Lilapur so that she could comply with the order of transfer to Madhutra and she was relieved only on 07.06.2021 to enable her to join at Laxmipura, as per transfer order dated 05.06.2021. B). That why was the petitioner not relieved from Lilapur so that she could comply with the order of transfer to Madhutra and she was relieved only on 07.06.2021 to enable her to join at Laxmipura, as per transfer order dated 05.06.2021. B). That why was the order of 01.12.2020 transferring the petitioner to Madhutra implemented after eight months i.e. relieving the petitioner from Lilapur immediately once the order of transfer was passed on 05.06.2021 and then reliving her on 28.07.2021 to enable her to join at Madhutra and why was the order therefore implemented only on 28.07.2021 by relieving the petitioner then though she was transferred to Madhutra on 01.12.2020. 18. All this indicates that the period of dispute of the petitioner's tenure at Madhutra is under scrutiny. Irrespective of and without prejudice to the exercise being undertaken the fact remains that the orders subsequent thereto have been cancelled and the natural and obvious compliance as is also accepted by the DPEO is to permit the petitioner to report at Laxmipura as directed by the DPEO's order dated 02.07.2022. 19. The DPEO, therefore, subject to the nature of inquiry as is evident from the communication dated 18.07.2022 and subject to the further orders that may be passed in LPA No.744 of 2022 should forthwith direct the Headmaster, Madhutra Primary School, Tal.: Santalpur to relieve the petitioner so as to enable her to join at Laxmipura in order to it being a complete compliance of this Court's order dated 05.05.2022 passed in Special Civil Application No.10739 of 2021. 20. The petition is allowed in terms of Prayer 10(b) with no order as to costs. Rule is made absolute to that extent. Direct Service is permitted. FURTHER ORDER 21. Mr. H.S. Munshaw, learned counsel for the respondent - District Primary Education Officer requests that the operation and implementation of the order be stayed. 22. As observed in the order, the initial order is already under challenge before this Court in Letters Patent Appeal No.774 of 2022. 23. Request for stay is rejected.