Gujarat High Court
Vinodkumar Lebajibhai Patel vs The State Of Gujarat on 5 May, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/15537/2020 CAV JUDGMENT DATED: 05/05/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15537 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 15539 of 2020
With
CIVIL APPLICATION (DIRECTION) NO. 2 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 15539 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 16791 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 16822 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 15438 of 2020
With
CIVIL APPLICATION (FIXING DATE OF EARLY HEARING) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 15438 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 15536 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 15548 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 15550 of 2020
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 15550 of 2020
With
CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 2 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 15550 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 15542 of 2020
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 15542 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 1032 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 212 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 6860 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
Page 1 of 21 Downloaded on : Thu May 05 21:04:47 IST 2022C/SCA/15537/2020 CAV JUDGMENT DATED: 05/05/2022 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 ?
========================================================== VINODKUMAR LEBAJIBHAI PATEL Versus THE STATE OF GUJARAT ========================================================== Appearance:
MR BM MANGUKIYA(437) for the Petitioner(s) No. 1,2 MS BELA A PRAJAPATI(1946) for the Petitioner(s) No. 1,2 MR HARSHRAJSINH VAGHELA for the Petitioner(s) DS AFF.NOT FILED (N) for the Respondent(s) No. 4 MS.SURBHI BHATI, AGP for the Respondent(s) No. 1,2 in SCAs 15537, 15539, 15542, 16791 of 2020 MR.KURVEN DESAI, AGP for the Respondent(s) No. 1,2 in SCA Nos.SCAs 1032, 212, 6860 of 2021 and SCA 16822 of 2020 MR.KRUTIK PARIKH, AGP for the Respondent(s) No. 1,2 in SCA Nos.SCA 15548, 15550, 15438, 15536 of 2020 MR HS MUNSHAW(495) for the Respondent(s) No. 3 ========================================================== CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV Date : 05/05/2022 COMMON CAV JUDGMENT
1. All these petitions under Article 226 of the Constitution of India are filed by primary teachers aggrieved by their orders of transfer on being declared as surplus. It is their case that before holding surplus camps for transfer, option camps as provided in the Government Resolutions from time to time be held so as to accommodate them in upper primary sections within the same school and/or local Page 2 of 21 Downloaded on : Thu May 05 21:04:47 IST 2022 C/SCA/15537/2020 CAV JUDGMENT DATED: 05/05/2022 pay centers rather than declare them as surplus and send them out from the schools in which they were discharging their duties.
2. All these petitions were heard together. However, facts of each petition in brief are as under:
SCA 15537 of 2020
3. The petitioner no.1 is aggrieved by the action of the respondent of not absorbing him in the upper division of the primary section in the same school whereas, the petitioner no.2 is aggrieved by the action of the respondents declaring her as surplus in the lower division. The petitioner no.1 after having passed 10th and 12th standard, holds PTC degree. He was appointed as a Vidhya Sahayak on 04.12.1998 and thereafter, absorbed as a Primary Teacher. He also holds the qualification of Bachelor of Arts after undergoing the course through distance learning in Dr.Babasaheb Ambedkar University. The petitioner no.2 also holds PTC and was appointed as Vidhya Sahayak on 06.02.2002. Since her husband is posted somewhere at Sajoi Primary School, she was transferred to the school where her husband was posted. She has completed five years as Vidhya Sahayak. It is her case that if the resolutions of the Government with regard to the policy of absorption of the teacher in the upper primary division and the Page 3 of 21 Downloaded on : Thu May 05 21:04:47 IST 2022 C/SCA/15537/2020 CAV JUDGMENT DATED: 05/05/2022 transfer policy are properly interpreted, the petitioner would not be declared as surplus inasmuch as, once the petitioner no.1 is absorbed in a post vacant in the upper division in the same school, the petitioner no.2 would not be declared as surplus and she would be retained in the lower division.
SCA 15539 of 2020
4. The prayer in this petition is to permit the petitioner to avail the option and be posted in his home school rather than be posted outside in any other school during the general camp. The petitioner is a primary teacher declared as surplus. It is his case that he holds the requisite qualification and would therefore be entitled to be absorbed by virtue of the option camps held every year in April in upper primary division and therefore, in the successive general camp he could not be declared as surplus, had he the opportunity of exercising option by holding option camps earlier than the general camp.
SCA 15542 of 2020
5. The petitioners in this petition have prayed to hold and declare the action of the respondents to transfer them to merged schools being in violation of the guidelines passed by the respondent. The case of the petitioners is that they are primary teachers working in respective schools in Fatehpura in 2019.Page 4 of 21 Downloaded on : Thu May 05 21:04:47 IST 2022
C/SCA/15537/2020 CAV JUDGMENT DATED: 05/05/2022 Keeping the number of students in mind, the respondent authorities decided to merge the schools. Lower number of students of one school would join school with more students. According to the petitioner, while merging school staff, they should be placed in the school of same Taluka. Had the petitioners the benefit of correct interpretation of the Government Resolutions, they should not be declared as surplus.
SCA 1032 of 2021 and SCA 212 of 2021
6. The petitioners have prayed for a direction to hold camps according to the notifications dated 23.05.2012 and 19.02.2014. It is their case that they are primary school teachers and they had lost their opportunity to be absorbed in their own school/pay centers/taluka in spite of vacancies available. Various notifications have been relied upon by the petitioners to submit that transfers of teachers of lower primary to upper primary section has to be conducted in April each year and if they are conducted before the general camp, they would be absorbed in their home schools on they being given the option to go from lower primary to upper primary section.
SCA 16791 of 2020, SCA 16822 of 2020 and SCA 6860 of 2021
7. The petitioners of this petition have prayed for a Page 5 of 21 Downloaded on : Thu May 05 21:04:47 IST 2022 C/SCA/15537/2020 CAV JUDGMENT DATED: 05/05/2022 direction that they be allowed to avail the vacant upper primary seats in their home schools/pay centers/talukas. It is their case that had the options for upper primary absorption been given earlier in general camp, the petitioners could have been spared of being transferred.
SCA 15548 of 2020, SCA 15550 of 2020 SCA 15438 of 2020 SCA 15536 of 2020
8. So far as these four petitions are concerned, the facts in these petitions are similar to the above referred petitions and therefore these petitions are also being disposed of by this common judgment.
9. In all these petitions, Mr.B.M.Mangukiya learned advocate has appeared with Ms.Bela Prajapati and Mr.Harshrajsingh Vaghela learned advocates for the petitioners. Learned AGP Mr.Kurven Desai, Mr.Krutik Parikh and Ms.Surbhi Bhati learned AGPs have appeared in the respective petitions for the State - respondents and Mr.H.S.Munshaw learned advocate has appeared for the respective respondent
- District Primary Education Officers.
10. Mr.B.M.Mangukiya learned counsel for the petitioners would submit that the transfer orders passed pursuant to the option camp of 2020 have been challenged on the ground that they were not Page 6 of 21 Downloaded on : Thu May 05 21:04:47 IST 2022 C/SCA/15537/2020 CAV JUDGMENT DATED: 05/05/2022 held in accordance with the stipulations under notification dated 19.02.2014. He would submit that the option camps were to be conducted between 01 st of April and 30th of April, by which, eligible candidates are to be given options to take a transfer to the upper primary division (6 to 8 standards of their home schools/pay centers/talukas). He would submit that reading the resolution dated 19.02.2014, it would become evident that initially there was only a primary section. However, after coming into force of the Right to Education Act, the Government bifurcated the two sections as lower and upper sections of the primary division. Standards 1 to 5 were made a separate division and designated as lower primary section whereas standards 6 to 8 were designated as upper division.
11. Relying on various resolutions viz. of 27.04.2011, 16.02.2012, 23.05.2012 and 26.10.2020, Mr.Mangukiya would submit that transfers of teachers of lower primary to upper primary division has to be conducted in the month of April and in any case, before the general camp. If the respondents follow the notifications and conduct the camps in the sequence accordingly, the petitioners who were qualified to be absorbed in the upper division, would get the benefit to be so absorbed in their home schools or in the pay centers or talukas. This sequence if followed before the general camps, than Page 7 of 21 Downloaded on : Thu May 05 21:04:47 IST 2022 C/SCA/15537/2020 CAV JUDGMENT DATED: 05/05/2022 the petitioners would rather be absorbed in the upper primary sections and not be declared surplus and go out in general transfer. He would rely on various clauses of the notification dated 19.02.2014.
12. Mr.Mangukiya would also press into service the orders of the Division Bench in LPA Nos.111 of 2021 and 149 of 2021.
13. Mr.Mangukiya would submit that in April 2021, the respondents announced an option camp for 2021 as per the Government Resolution dated 19.02.2014. The petitioners holding qualifications for the upper primary section were invited and given transfer orders in the upper primary division. However, the orders were subsequently canceled on the ground that they would be subject to the outcome of these petitions.
14. As far as the notification dated 23.07.2019 is concerned, he would submit that in Special Civil Application Nos.15542 of 2020 that is the additional ground on which the transfer is challenged. He would submit that the petitioners were declared surplus due to merger of schools. The notification dated 23.07.2019 stipulated that any teacher declared surplus due to merger of schools shall be given a clear vacant seat immediately in the same pay center / taluka.
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15. In other words, summarizing the contentions, Mr.Mangukiya would submit that the camps are to be organized in a specific order to accommodate as many teachers in their own school / pay center / taluka.
On 31st of August every year, the respondents are directed to publish a surplus list of teachers which would mean that it would include a teacher who has been unable to be absorbed in the same school. This camp would be held in November. Since no camps were held in the summer of 2020 by declaring the petitioners as surplus as on 31 st August, even when seats are available in the upper division, they are declared as surplus. Consequently, by moving the petitioners to the upper division, vacancies left in the lower division would have been filled in by lower division primary teachers rather than they be declared as surplus.
16. Mr.H.S.Munshaw learned counsel appearing for the respective District Primary Education Officer took the Court through the affidavit in replies filed in each petition and would submit that the recruitment of Vidhya Sahayaks / Assistant Teachers be made by the District Primary Education Officer. Earlier, Standards 1 to 7 were part of Primary Education.
Page 9 of 21 Downloaded on : Thu May 05 21:04:47 IST 2022C/SCA/15537/2020 CAV JUDGMENT DATED: 05/05/2022 Subsequent to the enactment of the Right to Education Act and its implementation, Standards 1 to 5 were treated as part of lower primary education section while Standards 6 to 8 were treated as part of upper primary education section. The upper primary education section of Standards 6 to 8 have subject teachers of (i) Maths and Science, (ii) Language and (iii) Social Science. Initially, the State had issued a resolution dated 03.06.2010 laying down a ratio of students and teachers for providing better education in primary and upper primary division. Thereafter, a resolution dated 23.05.2012 was issued for transfer of Vidhya Sahayaks/Assistant Teachers of lower primary education section as well as upper primary education section. The determination of sanction of teachers of a particular school is on the basis of the number of students as on 31st August of concerned year. Later on the Government amended this resolution vide a resolution dated 18.02.2014. Thereafter, recently the Government had issued a resolution dated 26.10.2020 where it is categorically laid down that Vidhya Sahayaks / Assistant Teachers of lower primary section will be transferable in lower primary education section only. Also is the case for teachers of upper primary education section. According to him, the petitioner no.1 is not entitled to the relief of absorption in the upper Page 10 of 21 Downloaded on : Thu May 05 21:04:47 IST 2022 C/SCA/15537/2020 CAV JUDGMENT DATED: 05/05/2022 primary section merely because of the qualification. That would be contrary to Government Resolution dated 26.10.2020. Petitioner no.2 also is not entitled to the absorption.
17. In addition to these facts, in SCA No.15539 of 2020, he would extensively deal with explaining the set up position and submit that since the petitioners are declared as surplus, they have been transferred in the primary section on the basis of their qualification. In addition to these facts, in SCA 15542 of 2020, SCA 1032 of 2021 and SCA 212 of 2021, he would extensively deal with explaining the set up position and submit that the schools were merged on administrative grounds. There were only 18 students in Mali Faliya Primary School and therefore as per the policy dated 23.07.2017, the decision was taken to merge schools based on students strength in primary as well as upper primary section. Since the petitioner was the junior most teacher, he was asked to attend the camp. As far as petitioner no.2 is concerned, she too was asked to attend the camp on merger. The camp is held on the basis of number of students in primary as well as upper primary.
18. Mr.Krutik Parikh learned AGP on behalf of the State read out the various resolutions, especially the resolution dated 26.10.2020 and the resolution of 23.05.2012 and submitted that the policy of transfer Page 11 of 21 Downloaded on : Thu May 05 21:04:47 IST 2022 C/SCA/15537/2020 CAV JUDGMENT DATED: 05/05/2022 in accordance with the resolutions in question, would indicate that the sanctioned strength in each school has to be assessed on the basis of the set up as on 31st of August each year. He would rely on the resolution of the State dated 18.02.2014 and submit that by way of an amendment to the resolution of 23.05.2012, it was specifically provided that those upper division teachers who were working in the upper primary section, were to be treated on the basis of their continuous service from Standards 1 to 8 and placed accordingly in the seniority list.
19. Mr.Parikh would then rely on the condition of Resolution dated 26.10.2020 which again watered down the 18.02.2014 resolution by formulating a policy that the seniority of Standards 1 to 5 and 6 to 8 could be maintained separately. On the basis of being declared surplus in each section, transfers would be made. Those of Standards 1 to 5 would be placed in that very section and in case of subject teachers of Standards 6 to 8 would be placed as subject teachers in the vacancy of a particular school. Those qualified teachers who were in Standards 1 to 5 shall not be placed in Standards 6 to 8 and those qualified teachers who were in Standards 6 to 8 shall not be be placed in Standards 1 to 5.
20. Having considered the submissions made by the Page 12 of 21 Downloaded on : Thu May 05 21:04:47 IST 2022 C/SCA/15537/2020 CAV JUDGMENT DATED: 05/05/2022 learned counsel for the respective parties, what needs to be interpreted is the policies of transfer vis- a-vis the upper primary and/or the lower primary sections in the establishments under the Director of Primary Education.
21. First in point of time is the resolution dated 03.06.2010 framed by the Government which provided for a student teacher ratio. It provided for the ratio in Standards 1 to 5 and 6 to 8 respectively. This was in light of the enforcement of the Right to Education Act. That was followed by a Government Resolution dated 27.04.2011 in relation to appointment of primary teachers / upper primary teachers. That provided for qualifications for appointment to the respective sections. For the purposes of primary section, the qualification was minimum HSC with PTC or CP.Ed. For the upper primary section, subject wise qualification was described inasmuch as for the purposes of Maths- Science teacher, an incumbent should be B.Sc. and PTC with 2 years or B.Ed. 1 year or 12th Standard with 50% and 4 years Bachelors in Elementary Education or 12th Standard with 50% and 4 years with B.Sc. B.Ed. For language teachers, B.A. in English, Gujarati, Hindi or Sanskrit with PTC or B.A. with 45% and 1 year B.Ed. Or 12 th Standard with 50% and Bachelors with Elementary Education or Page 13 of 21 Downloaded on : Thu May 05 21:04:47 IST 2022 C/SCA/15537/2020 CAV JUDGMENT DATED: 05/05/2022 12th Standard with 50% and 4 years with B.A. B.Ed. For Social Science, B.A./B.Com and two years PTC or 45% with B.A./B.Com or 1 year B.Ed. etc.
22. Then came the policy dated 16.02.2012 with regard to absorption of primary teachers into upper primary section, that provided for implementation of the Right to Education Act which stipulated that due to the Act, an additional section of Standard 8 had to be created. From June 2012 therefore, those primary teachers who were recruited prior to June 2012 and who possessed the qualification of being absorbed in the upper primary division, would be taken into the upper primary section irrespective of the policy of 04.06.2004 of transfer. This was subject to the condition that such primary teachers would have to opt for being absorbed in the upper primary section based on the qualification. This policy specifically provided for absorption for the academic year 2012. Then came the resolution of the State dated 23.05.2012 which provided for various modes of transfer viz. inter-district, intra- district etc. This was further amended by a resolution dated 18.02.2014 which extensively amended the resolution dated 23.05.2012. It inter- alia provided that in view of the provisions of Section 26 of the Right to Education Act while undertaking transfer, care has to be taken that not Page 14 of 21 Downloaded on : Thu May 05 21:04:47 IST 2022 C/SCA/15537/2020 CAV JUDGMENT DATED: 05/05/2022 more than 10% of the posts remain vacant where, there are less than 10% vacancies. They have to be filled in by the relevant incumbent from the relevant section.
23. The resolution on which the petitioners want to rely upon is that of 19.02.2014 which dealt with the qualifications / absorption in the upper primary section which was pari-materia to the resolution of 16.02.2012 and which has been referred to in the said resolution. The only difference was, that it provided for reference to the policy of transfer dated 23.05.2012 and provided that irrespective of the transfer policy, camps for absorption for upper primary division teachers should be held from 1 st April to 30th of April of each year. Clause 4 of the resolution specifically provided that while absorbing subject teachers of Maths - Science, languages and social studies, care should be taken that only if they cannot be absorbed in the same school, then as per their seniority, they should be put in the same pay center or Taluka and only if there are no vacancies, they would be sent to other schools. As per the notification dated 23.07.2019, which concerned with transfer on merger of schools, it provided that any teacher declared as surplus due to merger of schools, shall be given a clear vacant seat in the same Taluka.
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24. A conjoint reading of all these resolutions therefore, would indicate that on coming into force of the Right to Education Act, the primary section was divided into two divisions viz. the lower primary division and the upper primary division. The lower primary division consisted of standards 1 to 5 and that of the upper primary division consisted of standards 6 to 8. The Government Resolution dated 27.04.2011, provided for minimum qualifications that an incumbent should hold for being appointed in the primary section as well as the upper primary section. The qualifications for occupying the posts in the upper primary division have clearly been set out above. Based on these qualifications, the policy of 16.02.2012 and that of 19.02.2014 which are pari- materia need to be read. These two resolutions provide that at the relevant points of time, that is when the 16.02.2012 resolution was in force, the transfer policy was in accordance with the resolution of 04.06.2004. That when the 19.02.2014 policy of absorption of teachers from primary to the upper primary section was framed, the policy in vogue for transfer was that of the resolution of 23.05.2012 amended by the resolution of 18.02.2014 and that of 26.10.2020.
25. When all these resolutions are read in conjunction, what is evident is that the camps for absorption of qualified upper primary division sections have to be Page 16 of 21 Downloaded on : Thu May 05 21:04:47 IST 2022 C/SCA/15537/2020 CAV JUDGMENT DATED: 05/05/2022 held between 1st April to 30th of April each year. Based on the qualifications prescribed under the resolution of 19.02.2014, viz. those incumbents who have done their B.Sc. or B.A. shall be treated as qualified for absorption in upper primary division and such qualified candidates will have to be asked for their options. Based on these options, as per condition no.4 of the resolution dated 19.02.2014, they shall be continued to be retained and absorbed in the upper primary division of the same school/pay center and talukas. It is thereafter that transfer camps based on the set up as on 31 st August of each year has to be calculated and surplus camps for transfer have to be organized.
26. As far as the resolution dated 26.10.2020 is concerned, the embargo that is put on such transfers or movement of teachers from the lower division to the upper division is only restrictive inasmuch as the qualifications of the teachers in the respective section have to be assessed. Care has to be taken to see that those teachers who do not possess qualifications of Standards 6 to 8 are transferred to schools or absorbed in the upper primary division. This therefore, cannot be read to override the spirit of the policies of 16.02.2012 reformulated by resolution of 19.02.2014 in context of transfer policy dated 23.05.2012 amended from time to time. This therefore, has to be kept in mind Page 17 of 21 Downloaded on : Thu May 05 21:04:47 IST 2022 C/SCA/15537/2020 CAV JUDGMENT DATED: 05/05/2022 before organizing surplus camps of transfer in consonance with the policy of 23.05.2012 post options being invited by virtue of the resolution of 19.02.2014 as the same is clearly stipulated in the resolution of 19.02.2014. What has also come on record that by virtue of the interim orders passed by this Court in Letters Patent Appeal No.111 of 2021 dated 08.02.2021 which reads as under, status quo was granted in favour of all such teachers:
" Heard Shri B.M. Mangukiya, along with Shri Harshrajsinh Vaghela, learned counsel for the appellants and Shri D.M. Devnani, learned Assistant Government Pleader for the State.
Shri Devnani, learned Assistant Government Pleader was granted time to obtain instructions in the matter on 27.01.2021. Today, he has received instructions in both the matters.
These two appeals have been preferred by the original writ petitioners, who are working as regular teachers in the primary/basic institutions of the State run under the Director Primary Education. In the writ petitions, they have challenged the camp being held for the transfer the State for adjustment of teachers depending upon the requirement of teachers in different schools based upon the strength of the students. If the students strength had fallen, then the teachers would become surplus and would be posted somewhere else where they were required, i.e., where the number of students had increased. The learned Single Judge, dealing with such matters from time to time had been passing Page 18 of 21 Downloaded on : Thu May 05 21:04:47 IST 2022 C/SCA/15537/2020 CAV JUDGMENT DATED: 05/05/2022 interim orders. The effect of the interim orders was that these teachers would not be transferred pursuant to the transfer orders or that the transfer orders would not be given effect to. In some of the cases, liberty was also given to the teachers to participate in the camp indicating their choice and raising their objections, whatever may be permitted, but the decision so taken in the camp with respect to their transfer would not be given effect to.
According to Mr. Mangukiya, although 100 of teachers have got interim orders, unfortunately, the present appellants in the two appeals could only get an order to the effect that any subsequent action taken would be subject to outcome of the petition. He submits that this would mean that the present appellants would have to join at the transferred place. He further submits that all other teachers who have approached this Court are protected by different orders of the learned Single Judge and a group of such orders have been filed along with the stay application as AnnexureA collectively. It was for this reason that, we had granted Shri D.M. Devnani, learned Assistant Government Pleader time to obtain instructions as to whether the present two matters are similar to the other matters in which better interim orders have been granted. Shri Devnani, learned Assistant Government Pleader upon instructions has stated that similarly situate teachers have got interim orders in their favour staying their transfer.
In order to maintain similarity with respect to the teachers who have approached the Court, we dispose of these two appeals, by providing that till the disposal of the Special Civil Applications filed by the appellants, even if any decision is taken for their transfer, the same may not be given Page 19 of 21 Downloaded on : Thu May 05 21:04:47 IST 2022 C/SCA/15537/2020 CAV JUDGMENT DATED: 05/05/2022 effect to and if already given effect to, the transfer orders be kept in abeyance. We, also, make it clear that in case any of the appellants desire to continue at the new place of posting, and do not wish to pursue or prosecute their petitions, they may give so in writing before the authorities and may continue, otherwise the transfer order as already stated above would remain in abeyance and shall be treated to be not given effect to.
With the aforesaid directions, the appeals stand disposed of. The learned Single Judge will proceed to decide the writ petitions on its own merits. We make it clear that we have not entered into the merits of the controversy.
Consequently, the connected civil applications also stand disposed of.
Direct Service is permitted."
27. The petitioners were asked to give options and transfer orders were made in accordance with the Government Resolution dated 19.02.2014. The petitioners holding qualifications for the upper primary division were invited and given transfer orders in the upper primary division. Mr.Mangukiya would submit that however, these transfer orders were subsequently cancelled subject to the outcome of these petitions.
28. Having held that the petitioners who are qualified to hold the posts in the upper primary divisions were entitled to the option of being so absorbed in the upper primary division in the same school, pay Page 20 of 21 Downloaded on : Thu May 05 21:04:47 IST 2022 C/SCA/15537/2020 CAV JUDGMENT DATED: 05/05/2022 center or Taluka, should have been given such option prior to the holding of the transfer camps for surplus teachers based on the set ups as of 31st August each year and if orders have been passed in favour of such petitioners, giving them the benefit of being absorbed in the upper primary division, such orders shall be continued and the cancellation, if any, is set aside. Similar benefits shall also be given to those teachers who have been declared surplus due to merger of schools.
29. All these petitions are therefore allowed to the aforesaid extent. Respective Civil Applications also stand disposed of.
(BIREN VAISHNAV, J) ANKIT SHAH Page 21 of 21 Downloaded on : Thu May 05 21:04:47 IST 2022