Gujarat High Court
Prajapati Minaxiben Amichandbhai D/O ... vs State Of Gujarat on 9 August, 2021
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/11125/2021 ORDER DATED: 09/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11125 of 2021
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PRAJAPATI MINAXIBEN AMICHANDBHAI D/O AMICHANDBHAI
PRAJAPATI
Versus
STATE OF GUJARAT
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Appearance:
MR ANAND SHARMA WITH MR HIMANSHI R BALODI(8919) for the
Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MR DHAWAN JAYSWAL, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 09/08/2021
ORAL ORDER
1. Heard learned advocate Mr. Anand Sharma for the petitioner and learned Assistant Government Pleader Mr. Dhawan Jayswal for the respondent- State through video conference.
2. By 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 writ, order or direction, quashing and set aside orders dated 25-06-2021 & 22-06-2021 (Annexure A Colly), being illegal arbitrary unconstitutional, against settled legal position and in violation of principals of natural justice.
(B) Be pleased direct the respondents authorities to consider the case of Page 1 of 8 Downloaded on : Sun Jan 16 07:01:00 IST 2022 C/SCA/11125/2021 ORDER DATED: 09/08/2021 petitioner for teaching work in lower Primary section in same school consequent upon setting aside of aforesaid orders dated 25-06-2021 22-06-2021 with all consequential benefits.
(c)Be pleased to grant such other and further reliefs as may be deemed just and proper by the Hon'ble Court.
3. Brief facts of the case are that the petitioner was appointed as Vidhya Sahayak on 14.7.2003 as per the terms and conditions mentioned in the appointment order at Anandpura Primary School, Idar. On completion of the period of five years in fixed salary, the petitioner was placed in the regular scale vide order dated 12.9.2008. The petitioner was working at Didhiya Primary school, Khedbhrama at the relevant point of time. The petitioner thereafter joined Sardarpura Primary School at Hajipur, Taluka Himmatnagar, District Sabarkantha on being declared surplus.
3.1) According to the petitioner as the petitioner was fulling the education qualification for appointment to upper primary section, the petitioner exercised the option to work as teacher in upper primary section. Accordingly, the petitioner was allotted teaching work of standard 6 to 8 vide order dated 15.5.2017 in same school where she was posted.
Page 2 of 8 Downloaded on : Sun Jan 16 07:01:00 IST 2022C/SCA/11125/2021 ORDER DATED: 09/08/2021 3.2) The petitioner thereafter withdrew her option by representation dated 2.6.2021 and expressed her unwillingness to work in upper primary section in view of vacancy which arose in the lower primary section in the same school where she was teaching at Sardarpura Primary School.
3.3) The District Primary Education Officer, District Education Committee, Sabarkantha. Himmatnagar vide order dated 25.6.2021 rejected the representation of the petitioner and did not permit the petitioner to withdraw her option. The petitioner therefore, being aggrieved by the said order has preferred this petition with the aforesaid prayers.
4. Learned advocate Mr. Sharma appearing for the petitioner submitted that as per Government Resolution dated 4.9.2017, the petitioner is entitled to withdraw her option and the petitioner has already given an undertaking on 2.6.2021 that in future she would not claim any option to teach in upper primary school.
4.1) Learned advocate Mr. Sharma further submitted that as per the Government Resolution dated 4.9.2017, Government Resolution dated 16.5.2016 was amended by adding paragraph no.2 in the said Government Resolution and accordingly, the petitioner is entitled to Page 3 of 8 Downloaded on : Sun Jan 16 07:01:00 IST 2022 C/SCA/11125/2021 ORDER DATED: 09/08/2021 withdraw the option given to her pursuant to Government Resolution dated 16.5.2016 which is passed to permit the candidates to exercise option during the year 2016 as per paragraph no.4 of the Government Resolution dated 19.2.2014.
4.2) It was submitted that the petitioner has exercised the option on May 2017 which is prior to Government Resolution dated 4.9.2017 and therefore, the petitioner is entitled to withdraw the option given by her.
4.3) Learned advocate Mr. Sharma also referred to and relied upon the order dated 20.4.2020 in case of similarly situated person namely, Mansuri Rehmatben Hasanbhai whose option was permitted to be withdrawn by the respondent authority and was placed in lower primary section. It was therefore, submitted that the petitioner should also be permitted to withdraw her option on the ground of parity and the petitioner should also be permitted to teach in lower primary section from Standard 1 to 5 in the same school which is the original school of the petitioner.
5. Per contra, learned Assistant Government Pleader Mr. Dhawan Jayswal who appears on advance copy submitted that the Government Resolution dated 4.9.2017 is reiteration of Government Resolution Page 4 of 8 Downloaded on : Sun Jan 16 07:01:00 IST 2022 C/SCA/11125/2021 ORDER DATED: 09/08/2021 dated 19.2.2014 and as the petitioner has already exercised the option, the petitioner cannot be permitted to withdraw such option because such permission can be granted during the process of absorption in standard 6 to 8. As the process of absorption is already over, the petitioner cannot be permitted to withdraw the option.
6. Having heard the learned advocates for the respective parties and having gone through the relevant Government Resolutions, it appears that as per the Government Resolution dated 19.2.2014, the petitioner was permitted to exercise the option and order was passed on 15.5.2017 wherein the reference is also made to Government Resolution dated 19.2.2014 and the petitioner was posted at Sardarpura primary school as per the option exercised by the petitioner. It is also not in dispute that the petitioner is qualified to teach in upper primary section of standard 6 to 8. The petitioner has exercised such option to teach in upper primary section during the course of option camp held by the respondent authorities.
7. So far as reliance placed on Government Resolution dated 4.9.2017 is concerned, the same would not be applicable in facts of the case because as per the said Government Resolution, paragraph no.2 is added in Government Resolution Page 5 of 8 Downloaded on : Sun Jan 16 07:01:00 IST 2022 C/SCA/11125/2021 ORDER DATED: 09/08/2021 dated 16.5.2016. Government Resolution dated 16.5.2016 provides for the absorption of Vidhya Sahayaks/Primary teachers in upper primary section for standard 6 to 8 for the option year 2016 only. However, in facts of the case, the petitioner has exercised the option in the year 2017 during the option camp held by the respondent authority and the petitioner therefore, cannot rely upon the Government Resolution dated 16.5.2016 in which paragraph no.2 is added by Government Resolution dated 4.9.2017.
8. The petitioner is governed by the terms and conditions of Government Resolution dated 19.2.2014 which is referred in the order dated 15.5.2017. As per the Government Resolution dated 19.2.2014, paragraph no.4 thereof clearly provides that the petitioner can withdraw the option only during the process of absorption and thereafter, the petitioner loses the chance to exercise the option in upper primary section. However, no Government Resolution permits any teacher or candidate to withdraw the option once exercised after completion of process of absorption in upper primary section. The petitioner therefore, has wrongly relied upon the Government Resolution dated 4.9.2017.
9. With regard to the reliance placed on the order dated 20.4.2020 in case of Mansuri Rehmatben Page 6 of 8 Downloaded on : Sun Jan 16 07:01:00 IST 2022 C/SCA/11125/2021 ORDER DATED: 09/08/2021 Hasanbhai of Bhavangadh Primary school, Taluka Vadali is concerned, the facts of the said case are not emerging from the said order, nor the order dated 17.3.2020 which was passed giving permission to withdraw the option relying upon the Government Resolution dated 4.9.2017 is placed on record. In such circumstances, the petitioner cannot avail the benefit of parity with such employee.
10. From the order dated 20.4.2020 passed by the District Primary Education Officer, Sabarkantha, Himmatnagar, it appears that said Mansuri Rehmatben Hasanbhai had exercised the option to teach in upper primary section on 6.7.2019 which was withdrawn later on but at what time such option was exercised and at what time such option was withdrawn is not stated in the order. It is not possible to know whether such option was withdrawn during the process of absorption during the option camp or not. In such circumstances, the petitioner cannot rely upon the order dated 20.4.2020 passed in case of Mansuri Rehmatben Hasanbhai.
11. In facts of the present case, it is not in dispute that the petitioner exercised the option on 15.5.2017 and thereafter, due to vacancies in lower primary section in standard 1 to 5, the petitioner now wants to withdraw that option in the year 2021. Such withdrawal option cannot be Page 7 of 8 Downloaded on : Sun Jan 16 07:01:00 IST 2022 C/SCA/11125/2021 ORDER DATED: 09/08/2021 permitted as neither Government Resolution dated 16.5.2016 nor Government Resolution dated 4.9.2017 permit any teacher to withdraw the option after the same is exercised and after the option camp is over. Even the Government Resolution dated 19.2.2014 also provides for withdrawal of option during the process of absorption only and therefore, once the petitioner has exercised such option, the petitioner cannot withdraw it relying upon such Government Resolutions.
12. In view of the facts of the case, the petition is devoid of any merit and is accordingly summarily dismissed.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 8 of 8 Downloaded on : Sun Jan 16 07:01:00 IST 2022