Gujarat High Court
Patel Rameshbhai Bhikhabhai vs State Of Gujarat, Education Department on 20 September, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8667 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9834 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9877 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 10095 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 10439 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 8302 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 9135 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 9201 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9240 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 10712 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 9350 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 9578 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 9615 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 9743 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 10122 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 10532 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 11438 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 11736 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 15058 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 11460 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 11741 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 12095 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 13162 of 2022
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C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
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R/SPECIAL CIVIL APPLICATION NO. 8615 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 9786 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 9848 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 9238 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 9998 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 11444 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 9576 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 9890 of 2022
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R/SPECIAL CIVIL APPLICATION NO. 9894 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PATEL RAMESHBHAI BHIKHABHAI
Versus
STATE OF GUJARAT, EDUCATION DEPARTMENT
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Appearance: MR SHALIN MEHTA, SENIOR COUNSEL WITH MR HEMANG
M SHAH(5399) for the Petitioner(s) No. In Special Civil Application No. 8667,
9894, 9890, 9576 of 2022
MR PP MAJMUDAR for the Petitioner(s) No. In Special Civil Application No.
Page 2 of 60
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C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
11741, 11460, 15058, 11736, 11438 AND 10095 of 2022
MR GAURAV CHUDASMA for the Petitioner(s) In Special Civil Application
No. 9135, 9743, 10532, 10122 of 2022
MS VIDHI BHATT for the Petitioner(s) In Special Civil Application No. 9201 of
2022
MR SANDIP PATEL for the Petitioner(s) In Special Civil Application No. 9238,
9998 AND 11444 of 2022
MR RD KINARIWALA for the Petitioner(s) In Special Civil Application No.
8615, 13162, 9786 AND 9848 of 2022
MR BHAVESH PATEL for the Petitioner(s) In Special Civil Application No.
9615, 9240, 12095 AND 10712 of 2022
MR SURAJ MATIEDA for the Petitioner(s) In Special Civil Application No.
9703 of 2022
MS MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER with MS
SHRUTI PATHAK, AGP for the Respondent(s) No. 1, 2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 20/09/2022
CAV JUDGMENT
1. These petitions, under Article 226 of the Constitution of India, have been filed by primary teachers / Vidhyasahayaks challenging certain provisions of the Government Resolution dated 01.04.2022.
2. According to the petitioners, certain provisions Page 3 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 of the resolution especially Clause D(12), J(5) and L(4) are violative of Articles 14, 16 and 21 of the Constitution of India. According to the petitioners, these provisions cannot be made applicable to them retrospectively or retroactively inasmuch as their long seniority for the purposes of intra/inter - district transfer is jeopardized.
3. Facts are more or less common in each of the petitions and therefore facts of Special Civil Application No.8667 of 2022 are discussed.
4. The petitioners were appointed as Vidhya Sahayaks in different primary schools under the State. Upon completion of 5 years of service, their services came to be regularized. During the year 2009, with the enforcement of the Right to Education Act, 2009, primary section was divided Page 4 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 into two divisions; lower primary division (Standards 1 to 5) and upper primary division (Standards 6 to 8).
5. The qualifications required for teaching in the lower primary divisions and the upper primary divisions were later on prescribed by Government also under resolutions under the Right to Education Act. The eligibility criteria in terms of educational qualifications for both divisions were different. The bifurcation of the two divisions was explained in The Right To Education Act. It was carried out by the State of Gujarat by issuing Government Resolution dated 01.04.2010. As a result of the division into lower and upper primary divisions, it was decided by the government by issuing resolution dated 16 th of February 2012 that those teachers who were appointed prior to 10.06.2010 will be considered Page 5 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 as primary teachers of the lower primary division and those appointed thereafter subject to they having obtained the requisite educational qualification will be treated as upper primary division teachers.
6. The policy of regulating transfer of primary teachers was framed by a Government Resolution dated 23.05.2012 which provided guidelines for transfer of primary teachers teaching in primary sections and upper primary divisions respectively.
7. It is the case of the petitioner that the clauses of the resolution provided that the authorities were under an obligation to organize transfer camps once in a year during summer vacations for inter- district/intra-district transfers, mutual request transfer etc. The reservation further provided Page 6 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 that lower primary division teachers will be transferred to lower primary division and upper primary division teachers will be transferred to respective branches in the upper primary division.
8. For inter-district transfer of teachers the relevant clause provided that 40% of the vacant posts in a district are to be filled in by way of intra/inter district transfer of which 50% are to be filled by giving preference to widow teachers handicapped/disabled teachers, couple teachers and teachers belonging to Valmiki community. The remaining 50% of the vacancies are to be filled-in on the basis of seniority. The clause further provided that pending applications for district transfer required to be divided into four divisions and upper primary division teachers will be sent in the upper primary division on Page 7 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 giving an option. The resolution further provided that the said change of moving from the lower primary division to the upper primary division will have no effect on the applications already made and the date of seniority of the said applications will be maintained
9. The relevant clause further provided that year wise seniority list will be maintained. Moreover the District Primary Education Officer has to maintain seniority list as per the date of appointment. One of the clauses of the resolution provided that for intra/inter district transfer applications made by teachers will be considered to be final and for the purpose of seniority, year wise register is required to be maintained.
10. It is the case of the petitioner that the resolution dated 23.05.2012 which provided that the Page 8 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 District Primary Education Officer shall prepare a register on the basis of seniority was further clarified by resolution dated 07.09.2013 by which it was held that for the purpose of seniority the same would be counted from the school from which the option is exercised.
11. Further a resolution was issued by the state on 19.02.2014 which provided that those primary teachers who fulfill the eligibility criteria for teaching in upper primary divisions will have to submit their options to the District Primary Education Officer from April 1 to April 30 in any year.
12. It is the case of the petitioner that pursuant to an application made under The Right to Information Act for the purpose of seeking information, a copy of the communication dated 17.07.2017 Page 9 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 was addressed by the respondent no.1 to the Government Pleader of High Court of Gujarat. It was clearly stated that an upper primary teacher after exercising option would be placed in the seniority list as per the date of initial appointment.
13. By the resolution under challenge dated 01.04.2022, all the previous Government Resolutions especially the resolution dated 23.05.2012 have been superseded and completely new set of terms and conditions for intra/inter district transfer have been made. Aggrieved by certain provisions of the resolution which are said to be made applicable to the petitioners retrospectively the action is challenged by the petitioners.
14. Mr Shalin Mehta, learned Senior Advocate Page 10 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 appearing with Ms. Shikha Panchal made the following submissions:
(A) Mr Mehta would submit that on perusal of the government resolution dated 01.04.2002, in particular, clause D-12 thereof, indicates that for the purpose of making intra/inter district transfer applications seniority for the same is to be counted from the date of seeking option to come over from the lower primary section to the upper primary section and not from date of joining the school in the first instance. Mr Mehta referred to a chart placed along with the petition which indicates various particulars of the date of joining the school, date of exercising option to come over to the upper primary division etc. If the date of exercising option to come to the upper primary section is to be taken into consideration for the purpose of making an Page 11 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 application for inter/intra district transfer then it implies that past service rendered by such teacher on the post of primary teacher will be wiped out. Such teacher would be eligible to make an application for Intra/Inter District Transfer upon completion of 5 years of the posting in the upper division. If this is to operate teachers who are otherwise senior will become junior. It is submitted by the learned counsel for the petitioner that seniority determines the particular place which an employee occupies in the cadre to which he/she belongs. The whole purpose of the object of granting seniority in the present case is for the purpose of enabling the teacher to make an application for intra/inter district transfer. The question of seniority has to be determined on the basis of rules in force on the date of appointment of service. He would submit that the petitioners clearly have a vested Page 12 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 right accrued by virtue of the resolution dated 23.05.2012 by which it had been specifically stated that in the event a teacher teaching in the primary section upon achieving higher qualification has to come over to the upper primary section then the teacher would not lose his/her seniority from the date of joining of school of first instance.
(B) With regard to retrospective application of the resolution dated 01.04.2022 Mr. Mehta would submit that the resolution dated 01.04.2022 specifically states that the right of a teacher to submit an application for intra/inter district transfer is to be counted from the date of seeking option to come over from the lower primary section to the upper primary section and not from the date of joining of the school in the first instance. This implies that the service Page 13 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 period rendered by each of the teacher in the past would be wiped out and thereby deprive each of the teacher from making an application for transfer. It is settled law that service conditions pertaining to seniority are liable to alteration by subsequent changes but not in such a manner by which the entire past service rendered by an employee is wiped away. (C) He would submit that the resolution itself stipulates that it will come into effect from the date of its conception and therefore vested rights cannot be taken away and the resolution cannot operate retrospectively.
(D) Mr Mehta further submitted that right to transfer may not be a fundamental right but a right to be considered for transfer is recognized as a fundamental right and cannot be Page 14 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 altered/modified to the detriment of the employee to be transferred. He would submit that once in a lifetime a teacher can avail of inter/intra district transfer. However by the resolution dated 01.04.2022 that right is modified and the petitioners would be deprived of their right to be considered for transfer. (E) Conceding to the fact that policies need to change, the same cannot be to the detriment of the employees, he would submit that here is a case where teachers would be entitled to make an application for intra/inter district transfer from the date of seeking option to come over from the lower primary section to the upper primary section and not from the date of joining the school in the first instance. While altering/modifying the policies, the framers have to ensure that proper care is taken about service conditions including seniority and transfer. The Page 15 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 general rule is that if seniority is to be regulated in a particular manner in a given period it shall be given effect to and shall not be varied to the disadvantage of the employee.
(F) Mr Mehta would submit that the past service of the petitioners in the form of seniority in the matter of seeking intra/inter district transfer is either seriously affected or compromised and wholly destroyed. Vested rights cannot be destroyed by government resolution issued in exercise of executive powers under Article 162 of the Constitution of India. (G) Mr Mehta would rely on the following decisions;
1) S.B.Patwardhan and Another versus State Of Maharashtra and Ors. reported in (1977) 3 SCC 399. (Para 26) Page 16 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
2). Civil Appeal No.7364 of 2014 decided on 5.5.2022 (Paras 31, 33)
3). Chairman Railway Board vs C.R.Rangadhamaiah reported in (1997) 6 SCC 623.
15. Ms. Vidhi Bhatt learned Advocate appearing for the Petitioners would also submit that clauses D(12), H(3), J(5), L(3) and L(4) are violative of Article 14 of the Constitution of India. 15.1 In addition to the submissions made by Mr. Mehta, Ms.Bhatt would submit that the relevant clause of the Government Resolution dated 23.05.2012 states that pending applications for inter district transfer are required to be divided into four divisions. It further states that upper primary teachers would be absorbed against the Page 17 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 subject in upper primary division for which he/she has given option and the same has been accepted. The said change would not have any effect on the initial applications already made for inter district transfer and the date of seniority of the said applications will remain as it is. 15.2 Ms. Bhatt would submit that as per the clauses of the Government Resolution dated 23.05.2012 even on bifurcation of the divisions the seniority list for each category is to be prepared on the basis of length of service counting from the date of their initial entry into service in a district.
15.3 She would submit that reading of the relevant clauses of the Resolution would indicate that the initial applications made by teachers who were treated as lower primary teachers but Page 18 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 have migrated to upper primary division at the time of transfer would be absorbed against the subject he/she has given option and the same has been accepted. The said provision ensures that no teacher is given out of turn favour. 15.4 She would further submit that as per Government Resolution dated 23.05.2012, in a school if the pupil teacher ratio is not maintained that the junior most teacher of the school will be rendered surplus. For determining the seniority of the school, a list will be prepared based on the date of entry of teachers in that school. The last teacher to be appointed in the school will be the first one to go out.
15.5 She would submit that from 23.05.2012 to 31.03.2022, the policy of reckoning the seniority of lower primary teachers who migrated to upper Page 19 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 primary division has remained intact. All the teachers including the petitioners have submitted their option to teach in upper primary division clearly keeping in mind that their seniority would be counted from the date of entry in service and for the purposes of inter-district transfer, their initial application would not be affected. Also for the purpose of Intra District Transfer, their seniority would be considered from the date of appointment in the school from where they had given their option to join as upper primary teacher. For the likes of the petitioner everything has become topsy-turvy with the advent of the new resolution dated 01.04.2022. The resolution will now provide that option for transfer will be considered for those who have submitted their option forms in their 2021 after a period of three years and for inter district transfer or transfer by mutual consent another Page 20 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 district for a period of 5 years. The resolution on being given retrospective effect the petitioners would lose more than 10 years of their seniority of their applications. She would rely on the decision in the Accountant General and Another vs. S.Doraiswamy and Others reported in (1981) 4 SCC 93.
15.6 Ms. Bhatt would submit that the rationale of the Government to give retrospective effect is to be stated to be the observations made by this Court in Para 13 of the Oral Judgement dated 08.04.2019 in Special Civil Application No.6480 of 2016 whereas in that para itself the court has observed, that it is clarified that if the seniority is already assigned and fixed for the current year/session shall not be disturbed. 15.7 She would submit that the resolution withdraws a promise in a representation made Page 21 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 earlier. Retrospective laws are as a Rule, a questionable policy and contrary to the general principle that a legislature by which the conduct of mankind is to be regulated when introduced for the first time to deal with the future acts and ought not to change the character of past transactions carried out upon the faith of existing laws.
15.8 She would submit that seniority may not be a fundamental right but a civil right. Infringement of the said right would be permissible only if there exists a validly framed statute or a rule under Article 309 of the Constitution Of India.
16. Mr.P.P.Majmudar learned advocate also appearing for the petitioners in some of the petitions would submit that when the petitioners Page 22 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 were selected, the old policy was in force and had they known that due to change in policy they will lose their seniority they wouldn't have opted to go into the upper primary division. When they made applications to opt for upper division they were told that their appointments will be considered from the date of opting school at first instance and would get a priority in the camps to select their districts which right, now has been wiped out by the policy of 01.04.2022. He would reiterate the submissions made by Mr.Mehta.
17. Mr Gaurav Chudasama learned counsel for the petitioners in addition to the submissions made by the learned counsel for the respective parties, would rely on the decision of this court in the case of Special Civil Application No.18313 of 2016 wherein this Court held that if the interpretation for the purpose of inter district Page 23 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 transfer is permitted as per the State, the whole policy will go haywire and therefore, right to be transferred to a school has to be on the basis of the date of initial appointment and or application made and not on the date of option exercised for going into the upper primary division.
18. Mr. R.D.Kinariwala learned counsel for the petitioners in special civil application is filed on behalf of certain other petitioners also submitted that the clauses which have been set out in the petitions which have been placed for consideration violate Articles 14 and 16 of the Constitution of India. He would submit that by bifurcation of the two sections the cadres do not change and also the payscales of lower primary teachers and upper primary teachers remain the same. Therefore the altered conditions of considering the date of application for transfer Page 24 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 which adversely affect their seniority is illegal and violates a constitutional guarantee enshrined under Article 14 of the Constitution of India. He would rely on a decision of the Supreme Court in the case of N.K.Chauhan versus State of Gujarat reported in AIR 1977 SC 251.
19. Ms. Manisha Lavkumar learned Government Pleader has appeared with Ms.Shruti Pathak and Mr.Utkarsh Sharma for the State and made the following submissions:
(1) She would submit that the challenge in these petitions on the retrospectivity of the Government Resolution dated 01.04.2022 and other challenges are misconceived.
(2) She would submit that the petitions deserve to be dismissed as there is no illegality Page 25 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 committed by the State in passing the Government Resolution dated 01.04.2022 as it was framed with a view to bring in uniformity and iron out creases in the earlier resolutions.
(3) She would submit that as a result of the enactment of the RTE Act of 2009, there was an overhaul in the system of education inasmuch as Standards 1 to 5 were demarcated as Lower Primary Education and Standards 6 to 8 were demarcated as Upper Primary Sections.
(4) She would submit that consequences of the Government Resolution dated 27.04.2011 describe differential qualification so far as lower primary division is concerned and also for the upper primary division. She would submit that so far as lower primary division is concerned the qualifications for such teachers would HSC + Page 26 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 PTC + TET - 1 for standard 1 to 5 whereas for the upper primary section the qualifications for graduation + B.Ed + Tet - 2, which is further divided in three subjects of Maths, Science and language. She would submit that in exercise of powers under Article 162 of the Constitution of India and in exercise of powers conferred under Section 54 of the Bombay Primary Education Act, the State Government is empowered to give such directions which are necessary with regard to matters concerning primary education.
(5) She would briefly take the Court through the resolutions dated 15.04.2010, 27.04.2011, 16.02.2012 and submit that the resolutions provided a cut-off date of 31.03.2012 on which date it was mandatory for those who apply for Standard 6 to 8 to have a qualification of Tet - 2.
She would submit that it is very relevant to bring Page 27 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 it to the notice of the Court that with the bifurcation of primary section and two divisions keeping in view the student teacher ratio and different qualifications, large number of teachers were being rendered surplus. This factor was also considered not relevant for TET-2 to enable the teachers to stay in the same school and at the same pay center.
(6) She would submit that the mode and manner of operation of the new consolidated transfer policy by virtue of the resolutions in question, teachers teaching in the upper division approached this Court challenging the action of the authorities seeking orders restraining the respondent authorities from operating a new consolidated transfer register published in the year 2016 for the upper primary division. It was contended by the petitioner that if a primary Page 28 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 teachers are to submit their options every year on fulfilling the requisite qualifications and get appointment in standards 6 to 8 every year the transfer register maintained for standard 6 th to 8th would continue to be reshuffled and readjusted on the original date of the application made prior to the absorption based in standards 6 to 8. Relying on the relevant para 10 of the decision she would submit that the Court held that the right to make an application accrues to a teacher who wants to migrate to the upper primary division only when she acquires such qualifications or who already possesses the same on or before 31.03.2012. The moment two sections came into existence application filed before the coming of the two sections same gets obliterated and the seniority of the applicants is required to be considered from the date of the option that is which is filed after 31.03.2012. Page 29 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 According to the Court the applications which are filed by the teachers prior to the division of two sections gets diluted. Since after the bifurcation of divisions the teachers are designated as teachers of lower primary section and upper primary section on the basis of their qualifications, she would submit that it is in light of this decision of the court it was necessary to bring out a comprehensive policy and therefore the resolution dated 23.05.2012 was modified and a comprehensive resolution in the form of the resolution dated 01.04.2022 was brought into force.
(7) The learned Government Pleader would submit that in exercise of powers under Article 162 of the Constitution of India read with Section 54 of the Bombay Primary Education Act 1947 the State Government has issued various Page 30 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 resolutions and the policy of transfer to primarily ensure effective implementation of the RTE Act 2009.
(8) She would submit that the RTE Act is child- centric and therefore transfer for multiple administrative reasons must be considered by the state authorities keeping in mind focus of the state government to effective imparting of education by qualified teachers to children of the age of 6 to 14.
(9) The learned Government Pleader would further the submit that with the advent of the RTE Act primary education in the State of Gujarat underwent a sea change. The teachers imparting education in the primary education as compared to to those in the upper primary division had lower qualifications. The state Page 31 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 government resolved to give an option to those teachers who possess the qualification of graduation without requiring them to undergo TET so as to enable them to stay in the same school in the upper primary division and/or in the same pay center. By exercising this option all such teachers made a voluntary decision to move to the upper primary division for various reasons. By virtue of exercising the option to go to the upper primary division they could stay in the same pay center on same school. A consolidated reading of the Government Resolutions of 2012 to 2019 would demonstrate that the policy of transfer has been evolving from time to time to meet the administrative needs and fulfill the requirements of the teachers seeking transfer. (10) It was in light of the decision of this Court, which found that the policy hitherto followed was Page 32 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 modified and therefore thought it fit to bring in the resolution dated 01.04.2022.
(11) The Government Pleader submits that pension, seniority, pay grades etc. are all service conditions. By virtue of the impugned Government Resolution, no service conditions are altered. The petitioners are entitled to continue to be granted pay in terms of their appointment and their seniority from date of appointment. The seniority referred to in the Government Resolution is essentially a preference or priority for consideration of transfer.
(12) She would further submit that while the state government is empowered to modify policies from time to time the same cannot be made retrospectively applicable. There is Page 33 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 material distinction between Act and Rules and policies. The policy as per the Government Resolution and the challenge is in consonance with the judgement of this court dated 08.04.2019 passed in Special Civil Application No.6480 of 2016.
(13) Learned Government Pleader would submit that the petitioners have admitted that there is no vested right. The policies are and can be modified from time to time in order to meet the exigencies and demands of the teachers seeking transfer. The transfer can neither be a vested right nor can it be claimed to be in contravention of the policy.
(14) Ms.Manisha Lavkumar Learned Government Pleader would rely on the following decisions: Page 34 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022
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(i) State of Haryana and Others vs. Kasmirsingh and Another [(2010) 13 SCC 306];
(ii) Airports Authority of India vs. Rajeev Ratan Pandey and Others [(2009) 8 SCC 337];
(iii) Ekta Shakti Foundation vs. Government of NCT of Delhi [(2006) 10 SCC 337];
(iv) Union of India and Others vs. Janardhan Debanath and Another [(2004) 4 SCC 245];
(v) State of U.P and Others vs. Gobardhan Lal [(2004) 11 SCC 402];
(vi) Kendriya Vidhyalaya Sangathan vs. Damodar Prasad Pandey and Others [(2004) 12 SCC 299];Page 35 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022
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(vii) National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan and Another [(2001) 8 SCC 574].
20. Having considered the submissions of the respective parties, the question that requires to be decided is whether the relevant clauses challenged by the Petitioners of the Government Resolution dated 01.04.2022 can be said to fail the test of Article 14 or can be said to be one which operate retrospectively so as to take away the vested rights of the Petitioners.
21. Before the Right To Education Act, 2009 was enacted there was only one division that was the Lower Primary Division which comprised Standards 1 to 7. As a result of the Act coming into force, the primary section was divided into two divisions, namely lower primary division Page 36 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 (standard 1 to 5) and upper primary division (standard 6 to 8). The qualifications for appointment were different and therefore that is not a matter of dispute. Even it is an admitted position that those Primary Teachers who acquired the higher qualification to be eligible to work as teachers in the upper primary division were given the chance to opt for going over to the upper primary division. This was in accordance with the Government Resolution dated 16.02.2012.
22. The State with a view to regulate the transfer policy of primary teachers/vidhyasahayak framed a policy resolution dated 23.05.2012. The Government Resolution provides for various chapters pertaining to the transfer of teachers.
23. Chapter Ka(A) provides for various types of Page 37 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 transfers like mutual transfer, transfer due to internal demand, district transfer, transfer due to serious illnesses and administrative transfer. The said chapter also refers to various types of teachers teaching in lower primary section and upper primary section which are divided into three categories of (1) Science and Maths (2) Social Science and (3) Languages. The Rules of Transfer etc. were extensively considered by a decision of this Court in Special Civil Application No.3255 of 2019 and allied petitions (Coram:
Mr.Justice Bhargav Karia), where, in Paras 18 to 23 the Court held as under:
"18. Having heard the learned advocates for the respective parties and having considered the Government Resolutions dated 23.5.2012, 18.2.2014 and 26.10.2020 pertaining to the rules for transfer of upper primary section of Vidhya Sahayaks and lower primary section of Vidhya Sahayaks which are relied upon by the respective parties, the relevant rules can be summarised as under :Page 38 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
i) Government Resolution dated 23.5.2012 is a policy decision of the State Government prescribing the rules for transfer of teachers/Vidhya Sahayaks of lower primary and upper primary section of schools in the State of Gujarat substituting the earlier Government Resolutions issued from 2004 to 2009.
ii) Government Resolution dated 23.05.2012 provides various chapters pertaining to the transfer of teachers/Vidhya Sahayaks of lower primary and upper primary section in the Government schools.
iii) Chapter Ka(A) provides for various types of transfers like mutual transfer, transfer due to internal demand, district transfer, transfer due to serious illness and administrative transfer. The said chapter also refers to various types of teachers teaching in lower primary section i.e. from standard 1 to 5 and upper primary section i.e from standard 6 to 8 which are divided into three categories of (1) Science and Maths (2) Social Science and (3) Languages.
The Rules of transfer of teachers/Vidhya Sahayak in lower primary section and upper primary section of schools are framed pursuant to coming into force of Right to Education Act, 2009 and as per the provisions of the said Act, the strength of the teachers in the lower primary section i.e. standard 1 to 5 and upper primary section i.e. standard 6 to 8 is determined on the basis of number of students and thereby the sanctioned post of each school was required to be decided as on 30th Page 39 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 September and to inform such set up as per teacher/student ratio before 31st October by each school.
iv) Rule 10 of the Government Resolution dated 23.05.2012 of Chapter Ka(A) refers to the priority to be given for transfer to widow, physically disabled or teacher couple and member of Valmiki Samaj.
v) Prakran Kh(Chapter- B) refers to the transfer of the surplus teachers. Rule 3 of Prakran KH(B) refers to the method of considering the surplus teacher and stipulates that the teacher who is the junior-most in the school from the date of entry in the school, is to be considered for declaring the surplus teacher.
vi) By Government Resolutions dated 18.2.2014 and 26.10.2020 the rules framed under Government Resolution dated 23.5.2012 were amended for the purpose of transfer. vii) By Government Resolution dated 26.10.2020, Rule (4) of Prakran Kh(B) which was amended by Government Resolution dated 18.2.2014 pertaining to the teachers who are not qualified to teach in standard 6 to 8 of upper primary section and when such teachers are declared as surplus then junior-most teachers, while considering all teachers from standard 1 to 8 as a one unit, were to be transferred. Such provision was altered and by Government Resolution dated 26.10.2020, two separate seniority lists of the teachers of standard 1 to 5 of the lower primary section and for standard 6 to Page 40 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 8 of upper primary section was required to be maintained and the teacher who is junior- most in lower primary section seniority list is to be considered for declaring surplus teacher and similarly teacher who is junior- most in the seniority list of upper primary section of standard 6 to 8 is to be considered for declaration of surplus teachers and at the time of transfer of surplus teachers, such surplus teachers having qualification to teach in standard 1 to 5 and standard 6 to 8 are to be transferred as per their qualification on the vacant post. Several other stipulations also were amended pertaining to Rule (4) of Prakran Kh(B).
19. In view of the above Rules which are relevant for deciding the controversy arising in these petitions, in facts of the cases of individual petitioners, they were transferred from their respective school either on the ground that the petitioners were declared as surplus pursuant to the aforesaid resolutions or in some cases as option was exercised by the concerned petitioner.
20. The petitioners were considered as surplus teachers considering their appointment in upper primary section of standard 6 to 8 in the seniority list maintained by the respective schools considering the date of entry in upper primary section.
21. Thus the seniority list of standard 1 to 5 and that of standard 6 to 8 was prepared on Page 41 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 the basis of Government Resolution dated 26.10.2020 without considering the Rule 3 of Chapter-Kh(B) of Government Resolution dated 23.5.2012 which stipulates that for the purpose of declaring surplus teacher, date of appointment in particular school is required to be considered. Therefore, the date of appointment of the petitioners in the respective schools is required to be considered and not the date when the petitioners were allotted teaching work in upper primary section of standard 6 to 8.
22. Thus the respondents have committed an error in preparing the seniority list for standard 1 to 5 and that for standard 6 to 8 as per Government Resolution dated 26.10.2020 which cannot be permitted in view of Rule 3 of Chapter Kh(B) of the Government Resolution dated 23.5.2012.
23. In that view of the matter, the petitioners who have been transferred by impugned transfer orders, which order is not yet implemented due to pendency of these petitions, cannot be sustained and are hereby quashed and set aside. The petitioners are required to be considered in seniority list for standard 6 to 8 as per their date of appointment in the respective schools and therefore, in the next camp, respective schools are required to consider the status of the petitioners accordingly and declare the petitioners as surplus or otherwise after considering the seniority of the petitioners with effect from the date of their respective appointments in the said Page 42 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 school."
24. Sub-Clause (6) of Clause (K) of the Resolution provided that the transfers shall be done once in a year during the summer break. Whereas the surplus camps would be held during the Diwali break.
25. Clause (GH) dealt with inter/intra district transfer. The relevant clauses of the policy provided that 40% of the vacancies can be filled in through district transfers. 50% of these vacancies were to be filled in by giving priority to widows, physically challenged etc whereas the remaining 50% could be filled in the basis of seniority. Therefore seniority was the criteria adopted for filling in these posts.
26. All applications were to be registered in the Page 43 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 Transfer register. The seniority list for each category is to be prepared on the basis of length of service counting their initial date of entry in the District.
27. Sub-Clause (10) of Clause (GH) states that only after the year wise seniority list is prepared for a year by the concerned officer that the next year's seniority list can be operated. Sub-Clause(11) states that for intra/inter district transfer the applications made by the teachers will be considered to be final and for the purpose of seniority a year-wise register is required to be maintained.
28. The Resolution dated 07.09.2013 clearly and explicitly stated that for the purpose of seniority, the same would be counted from the school from which the option is exercised.
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29. Therefore what is evident on reading the conditions and clauses of the Government Resolution dated 23.05.2012 is that for the purposes of considering the cases for inter/intra district transfers the date of initial appointment in the school was the relevant date that was considered and that continued to be even if a primary teacher of the lower division opted and migrated to the upper primary division.
30. From a communication obtained under the RTI Act which was addressed to the Government Pleader, High Court of Gujarat what is apparent is that in the said communication it is clearly stated an upper division primary teacher after exercising the option would be placed in the seniority list as per the date of initial appointment.
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31. The relevant clauses which have been brought under challenge of Government Resolution dated 01.04.2022 are as under:
D-12- As per the provisions of this Resolution the teachers appointed under the District/Nagar Prathmik Shikshan Samitis either by direct selection or promotion their dates of initial appointments shall be treated as the dates on their dates of joining. When they are transferred to other districts or Nagar Shikshan Samitis Their dates of joining be considered. In the case of those Upper Primary Teachers who have given options the relevant date shall be the the dates of their options as their dates of entry in service.
J-5- The option to come over to the Upper Primary Section shall be treated as a transfer.Page 46 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 Therefore from the school no applications for mutual transfer shall be entertained for 3 years and no application for inter/intra district transfer shall be entertained for 5 years.
L-4- This clause provides the Transfer Register shall in case of Lower Primary Teachers shall be prepared on the basis of date on entry and in the case of Upper Primary Division the same shall be on the basis of dates of option and separate seniority lists will be prepared and as far as Upper Primary Division teachers are concerned their seniority shall be computed on the basis of the dates of options.
32. The justification of the State in bringing these clauses whereby the seniority is modified to that of the date of exercising options and not as per the date of entry in the school is that two Page 47 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 sections namely lower and upper primary are different, their qualifications are different. If the instances that are set out in Annexure-B chart of the petitioners of Special Civil Application No.8667 of 2022 is seen then the applicants who have made applications and were placed in the seniority based on their date of entry if are reckoned from the date of exercising option then it shows that the past service rendered by those teachers and their applications will now not be considered on the basis of their initial appointments but by the date of options and therefore their entire past service is wiped out.
The argument by the State that these provisions do not disturb their seniority in the cadre and that their pay etc is protected is something that is not disputed. Working of the applications based on the new policy indicated that when a teacher in the lower primary section made an Page 48 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 application and opted to get into the upper primary division,the policy of the Government Resolution dated 23.05.2012 provided that the concerned optee's seniority shall be counted from the date of joining the school at the first instance and not from the date of option. The purpose behind considering the date of initial appointment as the date of application for inter/intra district transfer was to enable the teacher to make an application for transfer as such an option was given once in the entire service career of the teacher. That consideration is now postponed on the basis of an adverse input by postponing that consideration from the date of joining the school at the first instance to the date of option of coming over to the upper primary section.
33. It would be relevant to reproduce the relevant Page 49 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 observations of this Court in this context as observed in Special Civil Application No.18313 of 2016 wherein the Court considered the policy dated 23.05.2012 and held as under.
"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 interdistrict 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 application of the aspiring candidate is not applied and is not adhered to. It defies Page 50 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 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 interdistrict 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, treating the said date of application to be Page 51 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 the basedate. 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."
34.Moreover reading the Resolution dated 01.04.2021 and the relevant provisions of the Government Resolution dated 23.05.2012 which this Resolution seeks to replace indicates that the service condition i.e. the right to be considered for transfer based on the date of seniority from the date of initial appointment is wiped out with retrospective effect. Though the Government Resolution dated 01.04.2022 by the Page 52 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 language in the end part of the body of the resolution indicates that it shall be applicable prospectively in fact what is does is operate retrospectively and to the detriment of the Petitioners.
35.It will be relevant to reproduce Para 26 of the decision of the Supreme Court in the case of S.B.Patwardhan (supra) which reads as under:
"26. It is common ground that except the Bombay Rules dated September 21, 1939 and the Gujarat Notification dated August 21, 1965 the rest of the rules are in the nature of executive instructions. The Rules of 1941, 1960, 1963, 1965 and 1970 were not framed by the State Government concerned in the exercise of constitutional or statutory power. The Rules of 1960 and 1970 were issued "By order and in the name of the Governor," but that does not lend support to the construction faintly suggested on behalf of the direct recruits that the two sets of rules must be deemed to have been made under art. 309 of the Constitution. All executive action of the Government of a Stale is required by art. 166 of the Constitution to be taken in the name of the Governor. The appeals have Page 53 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 therefore to be disposed of on the basis that except for the Bombay rules dated September 21, 1939 and the Gujarat Notification dated August 21, 1965 the remaining rules, whether of recruitment or of seniority, are in the nature of executive instructions. These instructions, unlike rules regulating recruitment and conditions of service framed under the proviso to art. 309 of the Constitution or s. 241(2)(b) of the Government of India Act, 1936, cannot have any retrospective effect."
36.Paras 31 and 33 of the decision in the case of State of Bihar and Ors. V. Shyama Nandan Mishra rendered in Civil Appeal No.7364 of 2014 reads as under;
"31. Next, let us test the impugned action of the Government on the anvil of the Doctrine of Legitimate Expectation. The notification (23.06.2009) besides being legally untenable, would also deny the substantive legitimate expectations, the respondents nurtured, as members of the government schools in the BSES cadre. The denial is particularly glaring in the absence of promotional avenues for the respondents to the controlling/supervisory posts in the administrative wing of the education department. The respondents, in course of their service as +2 Lecturers, would reasonably expect to occupy the higher position in the department, depending upon their inter- se seniority in the common seniority list, but Page 54 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 the Government action, restricting movement through artificial sub-grouping of +2 Lecturers with teachers of nationalized schools, have unreasonably belied their expectation. This would suggest that the respondents were led up the garden path by the appellants.
...
...
33. Another facet of denial of legitimate expectations is underscored by the Court of Appeal of England and 9[1990] 1 W.L.R 1545 Wales in the seminal case of Coughlan10, where the Court preferred to use abuse of power as one of the criteria for testing whether a public body could resile from a prima facie legitimate expectation. In the Court's opinion, if the government authority induced an expectation which was substantive, the upsetting of that expectation, through departure from the expected course of action in the absence of compelling public interest, would be so unfair, that it would amount to abuse of power. In the present case, the abuse of power is discernible in the State's disparate decision in encadring the +2 lecturers with the teachers of nationalized schools, notwithstanding the contrary representation through the 1985 notification which created the +2 lecturer posts and the 1987 advertisement under which, the respondents entered service. Such manifest departure from the projected course smacks of arbitrariness and the government action, to selectively protect the interest of the BES 10R v. North and East Devon Health Authority Ex p. Coughlan, [2001] QB 213 cadre, does not conform to rules of justice and fair play."Page 55 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022
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37.The stand of the State that no vested right accrues as transfer is an incidence of service. Several decisions have been relied upon by the learned Government Pleader in support of these submissions.
38.However what is lost sight of that though transfer is an incident of service and an employee is bound by that condition of service, in the facts on hand when offered to make an application for transfer at the relevant time, the teacher is informed that the Application will be considered from the date of his/her joining. Now by virtue of the relevant clauses in the Government Resolution dated 01.04.2022 such consideration of transfer are postponed by not taking the relevant date of applications at first instance but from the date of options to come over to the upper primary sections. Page 56 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
39.A right to have the application for transfer on the date of first instance which is an accrued right is taken away. Even by virtue of the clauses is that though the right to make such application is once in the entire service tenure now such applications are not to be made for 3/5 years once having opted to stay in upper primary section.
40.What is evident therefore is that the Government Resolution dated 01.04.2022 indicates that the right of a teacher to submit an application for intra/inter district transfer is to be counted from the date of seeking option to come over from lower primary section to upper primary section and not from the date of joining the school in the first instance. It is obvious that service conditions pertaining to seniority are altered. In Page 57 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 such a manner that the entire past service rendered by the employee is wiped out. Transfer may not be a vested right but teachers are entitled to inter/intra district transfer only once during the entire service period and this is sought to be altered to the detriment of the petitioner.
41.In the case of Chairman Railway Board vs. C.S.Rangadhamaiah (supra) the Supreme Court held as under:
"24. In many of these decisions the expressions "vested rights" or "accrued rights" have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc. of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit Page 58 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon (supra), B.S. Yadav (supra) and Raman Lal Keshav Lal Soni & Ors., (supra)."
42.The Court has examined the validity of the clauses as under only which are considered and set aside namely Clause D(12)/J(5) and L(4) respectively.
43.On all these counts therefore the Clauses of the Government Resolution dated 01.04.2022 namely Clause No.D.(12), J(5) and L(4) are held to be bad in as much as they are violative of Article 14 of the Constitution Of India and also bad as they operate retrospectively to take away the vested rights of the Petitioners by wiping out their past seniority for consideration of their applications Page 59 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022 C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022 for inter/intra district transfer.
44.The aforesaid offending clauses of the Government Resolution dated 01.04.2022 are accordingly quashed and set aside. Petitions are allowed to the aforesaid extent.
(BIREN VAISHNAV, J) FURTHER ORDER Ms.Manisha Lavkumar learned Government Pleader for the State requested for stay of this judgment. The request is rejected.
(BIREN VAISHNAV, J) ANKIT SHAH Page 60 of 60 Downloaded on : Tue Sep 20 22:16:12 IST 2022