Gujarat High Court
Kiranben Jayantibhai Patel vs State Of Gujarat & 12 on 1 February, 2018
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/18313/2016 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18313 of 2016
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KIRANBEN JAYANTIBHAI PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 12....Respondent(s)
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Appearance:
MR JIGAR G GADHAVI, ADVOCATE for the Petitioner(s) No. 1
MR RASESH RINDANI, AGP for the Respondent(s) No. 1
MR GM JOSHI, ADVOCATE for the Respondent(s) No. 4 - 13
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 2 - 3
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 01/02/2018
CAV ORDER
The petitioner herein, a Teacher and Vidhya
Sahayak, has filed the present petition under Article
226 of the Constitution, seeking a direction against
respondent No.2 - District Primary Education Officer,
Mehsana, to set aside seniority list dated 19th
October, 2016, further praying to include name of the
petitioner in the list so as to permit the petitioner
to take part in the inter-district transfer camp.
2. The petitioner seeks transfer to a school
situated within the District of Mehsana on the ground
that her husband has been serving in the said
District. For the inter-district transfer requested on
the said ground, petitioner rests her case on the
policy Resolution of the State Government dated 23rd
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May, 2012, whereby the policy is evolved permitting
transfer of higher primary teacher, vidhya sahayak or
primary teacher, formulating certain conditions for
the said purpose.
3. The petitioner served in the Rapar Taluka at
Kutch District and was appointed as Vidhya Sahayak on
30th November, 2008. It is the case of the petitioner
that hers is an unblemished service career. It is
averred that husband of the petitioner - Patel
Ashwinkumar has been currently serving as Teacher at
Dhandhusan Primary School, Dhandhusan in the district
of Mehsana having been appointed on 05th September,
2011. The petitioner made an application on 19th
December, 2013 to be transferred to Mehsana district
since her husband was serving in the Mehsana. It
appears that while the aforesaid application dated 19th
December, 2013 was pending, petitioner opted to
switchover to upper primary section for which order is
passed shifting the petitioner to upper primary
section on 01st June, 2016.
3.1 When the petitioner was shifted to upper
primary section, at that time she reminded the
authorities regarding her application of December,
2013 for inter-district transfer being pending. These
letters of the petitioner are produced along with the
papers of the petition.
3.2 It appears that the process of conducting
inter-district transfer of Mehsana district was
initiated and seniority list of the Vidhyut Sahayaks
aspiring to be transferred, was prepared. The
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petitioner's name was not included in the seniority
list. As stated by the petitioner, she was orally
communicated that her application was of the year 2016
and treating her application to be of the year 2016,
her name was not included.
3.3 Precisely stated, the grievance of the
petitioner is that her request that she had made
application for inter-district transfer on 19th
December,2013 and the said date ought to have been
considered for the purpose of her entitlement, and not
the date of her shifting to upper primary section
which is the date adopted by the respondent
authorities and shall be omit the name of the
petitioner in the seniority list for transfer.
4. Heard learned advocates Mr.Jigar Gadhavi
for the petitioner, learned Assistant Government
Pleader Mr.Rasesh Rindani for respondent No.1, learned
advocate Mr.H.S. Munshaw for respondent Nos.2 and 3,
whereas learned advocate Mr.G.M. Joshi for respondent
Nos.4 to 13.
4.1 Learned advocate for the petitioner
submitted that though the petitioner had made
application, her name was not included in the list for
the purpose of transfer camp. It was submitted that
list was prepared contrary to the provisions of
Resolution dated 23rd May, 2012. It was submitted that
the petitioner has nine months old child when she made
application and today also the child is two years old
and needs personal attendance and love of the father
who is serving at Dhandhusan Primary School at
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Mehsana.
4.2 The petition was contested by respondent -
District Education Officer, Bhuj who, in his
affidavit-in-reply, stated inter alia that after
having applied for inter-district transfer to Mehsana
district, the petitioner opted for upper primary
section as a subject teacher of Social Science which
was accepted on 01st January, 2016 and the petitioner
came to be posted at Palasana Girls Primary School in
Rapar Taluka. It was stated that application of the
petitioner was processed in accordance with the
provisions of the Resolution dated 23rd May, 2012 and
18th February, 2014.
4.3 The District Education Officer, Mehsana, in
his affidavit-in-reply submitted to contend that the
seniority of the applicants for inter-district
transfer was required to be considered as on 31st
December of the previous year as per the Resolution.
In other words, it was submitted that application of
the petitioner for upper primary section was not
received on or before 31st December, 2015 and the
request was forwarded on 20th June, 2016. Therefore,
the case of the petitioner was not considered. Learned
advocate for the petitioner as well as learned
advocate for the private respondent submitted that
such cut-off date could not have been applied and the
application for transfer camp should be treated in the
chronology of seniority considering the time on which
application was made.
5. Adverting to the Resolution dated 23rd May,
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2012 of the Education Department, it permits transfer
of the primary teachers or vidhyut sahayaks on
different grounds which include transfer by mutual
consent, transfer on the ground of serious illness, on
administrative considerations as well as inter-
district transfer. Clause 7 of the Resolution inter
alia provides that transfer of the primary section
teacher would be made in the primary division in his
own subject. The Resolution contemplates that inter-
district transfer and internal transfer shall be acted
upon by holding camps. It was provided that vacancy is
available in a district would be taken into account
for the purpose.
5.1 In Chapter GH, conditions regarding inter-
district transfer are mentioned. It provides that the
teachers wanting to be transferred to different
district would be required to make necessary
application between 01st December to 31st December of
the year concerned. The applications so received would
be thereafter divided district-wise and would be sent
for camps which may be held. It is also provided that
after the seniority list of particular year is
exhausted, thereafter only the seniority list for the
next year would be operated. The condition which is
significant to be considered in light of the facts of
the case is that the application for inter-district
transfer once made, shall be accepted as permanent
request and necessary register could be maintained
year-wise. This is provided in condition No.GH(11).
5.2 Thus it is the basic application for
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transfer made by the teacher of primary section is
liable to be considered. The authority has to act upon
for the purpose of inter-district transfer with
reference to the said basic application. The date of
the application would be material and relevant for the
purpose of considering the case of the petitioner in
terms of seniority for the purpose of entertaining her
request.
6. It is an admitted fact that application was
made by the petitioner on 19th December, 2013. The
reason that the petitioner was shifted to upper
primary section is of no relevant or consequence in so
far as treating her application for inter-district
transfer in terms of its seniority. When the
application was made, as stated above, on 19th
December, 2013, it is with reference to that the
petitioner's claim would be considered. The event that
the primary section came to be divided into lower
primary and upper primary was a fortuitous
circumstance not connected with the policy provisions
in Resolution dated 23rd May, 2012. It has nothing to
do with the claim of the applicants who want inter-
district transfer. The fact that order was passed
shifting the petitioner to upper primary section
cannot wipe out the original claim of the petitioner
for inter-district transfer which was as per his
application dated 19th December, 2013 and liable to be
treated accordingly.
6.1 The policy of inter-district transfer would
go topsy turvy if the basic date in the first
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application of the aspiring candidate is not applied
and is not adhered to. It defies rationale that the
respondent authorities disregarded the date of
application, that is 19th December, 2013, but embraced
the date of 06th June, 2016 for counting the seniority
of the petitioner for inter-district transfer, though
that date had nothing to do with the aspect of inter-
district transfer. Nor such justification can be seen
to be stemming from the conditions of Resolution dated
23rd May, 2012.
6.2 If inter-district transfer is allowed to be
operated with such interpretation, for every
irrelevant or non-germane reason, the seniority would
be changed and the purpose of inter-district transfer
would be frustrated and the application of policy may
go haywire. Therefore in case of the petitioner, her
application dated 19th December, 2013 ought to be
treated as basic date with reference to which her
seniority and right to be transferred to the school
within Mehsana district has to be considered. Non-
consideration of the claim of the petitioner with
reference to the said date would not only not find
support from the policy resolution, but the same is
arbitrary, unreasonable and irrational, taking the
toll of tenets of Article 14 of the Constitution.
7. In view of above, the respondents are
directed to consider the application of the petitioner
for her inter-district transfer to a school situated
within Mehsana district with reference to and on the
basis of her application dated 19th December, 2013,
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treating the said date of application to be the base-
date. In the event, vacancy is not available in the
school within Mehsana district, as soon as vacancy
arises and available, case of the petitioner shall be
considered by transferring her. It is directed that
the respondent authority shall allow the petitioner to
participate in the inter-district transfer camp for
the purpose, which may be scheduled to be held within
two months. However if the transfer camp is not held
and the vacancy is arising within two months, the
petitioner shall be given benefit of transfer on the
basis of her seniority determined as above even
without participation in the transfer camp.
This petition is allowed in the aforesaid
terms.
Direct service is permitted.
(N.V.ANJARIA, J.)
Anup
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C/SCA/18313/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18313 of 2016
[On note for speaking to minutes of order dated 01/02/2018 in
C/SCA/18313/2016 ]
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KIRANBEN JAYANTIBHAI PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 12....Respondent(s)
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Appearance:
MR JIGAR G GADHAVI, ADVOCATE for the Petitioner(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 1
MR GM JOSHI, ADVOCATE for the Respondent(s) No. 4 - 13
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 2 - 3
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 19/02/2018
ORAL ORDER
The petition comes upon a Note for Speaking to Minutes filed by learned advocate for respondent Nos.4 to 13, in respect of order dated 01.02.2018, by which Special Civil Application No.18313 of 2016 was disposed of.
2. It was pointed out that in paragraph4.3 of the order, following sentence is wrongly transcribed :
"Learned advocate for the petitioner as well as the learned advocate for the private respondent has stated that such cutoff date could not have been applied."Page 1 of 2
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3. Instead of above, since the submission of the learned advocate for the private respondent was otherwise than recorded, the sentence shall stand corrected as under :
"Learned advocate for the petitioner has stated that such cutoff date could not have been applied."
4. It is, therefore, ordered that the sentence in paragraph4.3 of the order in question shall stand substituted as above and the order shall be read duly corrected as per the above correction.
5. The Note for Speaking to Minutes is disposed of.
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