Gujarat High Court
Patel Yogitaben Amrutlal vs State Of Gujarat on 24 November, 2022
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/23092/2022 JUDGMENT DATED: 24/11/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 23092 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 23839 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 23840 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 23841 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 23011 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 23094 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 21213 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 22219 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 22290 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 22291 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 22390 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 22616 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 22731 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PATEL YOGITABEN AMRUTLAL
Versus
STATE OF GUJARAT
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Page 1 of 17
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C/SCA/23092/2022 JUDGMENT DATED: 24/11/2022
Appearance:
MR GAURAV CHUDASAMA, ADVOCATE for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4
MR RONAK B. RAVAL, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 24/11/2022
ORAL JUDGMENT
1. RULE. Learned Assistant Government Pleader Mr.Raval, waives service of notice of rule on behalf of the respondent - State.
2. The present group of petitions are taken up for final hearing today since the issue involved in these petitions affects the administration of the State Government in the transfer policies of the teachers/Block Resource Centre (BRC)/ Cluster Resource Centre (CRC)/ Unit Reserve Coordinator (URC), who are serving in the State of Gujarat.
3. It is also noticed that all the writ petitions are filed by the respective teachers / BRC / CRC / URC against the action of the respondent authorities of not passing any written order. This Court is confronted with number of petitions, as and when the State is desirous of holding their camps for transfer of teachers in the State of Gujarat.
4. The petitions are filed on the last moment, since the teachers on the ground level are refused orally to participate in the camps meant for transfer on various reasons, such as seniority, fixation of their date of appointment in the respective parental school etc. The present writ petitions pertain to those teachers, who opted to go on deputation as Page 2 of 17 Downloaded on : Fri Dec 23 23:51:19 IST 2022 C/SCA/23092/2022 JUDGMENT DATED: 24/11/2022 BRC/CRC/URC. The writ petitions have their genesis in the Resolution / Policy dated 01.04.2022. The preamble of the policy dated 01.04.2022 reflects that prior to the issuance of that Resolution / Policy, the original policy of transfer has been altered 24 times by issuing various administrative instructions issued by the State Government regulating the transfer of the teachers in the State of Gujarat.
FACTS :
5. In the present case, the petitioners, who opted to go on deputation as BRC, CRC, URC are aggrieved by the action of the respondent authorities by ignoring their seniority from the date of their posting in the mother school. The case of the petitioners is primarily premised on the interpretation of two Clauses of the Policy dated 01.04.2022, more particularly Chapter-H (Clause Nos.7 and 8). It is the case of the petitioners that after the order of repatriation, they are not appointed in their mother school and they are declared as surplus or even if they are appointed in their original schools, their seniority from the date of posting in the mother school is ignored, which acts as predicament in accepting their applications for intra-district transfer.
6. The intra-district camps are scheduled to be organized in the month of December. There are two classes of the petitioners, who opted to go on deputation as CRC, BRC and URC; (a) those who are opted to go on deputation twice and repatriated pursuant to the directions issued by the State Government, and (b) those petitioners, who on their own after Page 3 of 17 Downloaded on : Fri Dec 23 23:51:19 IST 2022 C/SCA/23092/2022 JUDGMENT DATED: 24/11/2022 tendering resignation as BRC, CRC/URC have been repatriated. So far as the Category-A of such teachers, who opted to go on deputation as BRC, CRC and URC, it is the case of the State Government that their cases will be governed by the paragraph No.7 of Chapter-H of the policy dated 01.04.2022 and for Category-B, their case would be governed as paragraph No.8 of Chapter-H of the policy dated 01.04.2022.
SUBMISSIONS :
7. Learned advocate Mr.Chudasama, appearing for the petitioners has submitted that so far as the petitioners of the Category-A are concerned, those who have opted to go on deputation twice, are not repatriated on the original school and are declared surplus and their seniority of the mother school, in which they were initially appointed prior to their first deputation, is absolutely ignored and their seniority is counted from the date, when they opted to go on deputation again on the second occasion. He has submitted that the policy nowhere provides that in cases of the second deputation, when the BRC / CRC are repatriated, the seniority of their mother school, which was prevailing prior to their first deputation, is wiped out.
7.1 Learned advocate Mr.Chudasama, has also placed reliance on the judgment dated 28.09.2022 passed on Special Civil Application No.15272 of 2022, in support of his case. It is submitted that the petitioners cannot be made to suffer for the fault on the part of the respondent authorities, as on repatriation, it is a policy of the State Government that they Page 4 of 17 Downloaded on : Fri Dec 23 23:51:19 IST 2022 C/SCA/23092/2022 JUDGMENT DATED: 24/11/2022 are to be posted at the original school protecting their seniority and when the vacancy is not available in the mother school, they are declared surplus, on account of declaration of surplus they loose their seniority of mother school.
7.2 Learned advocate Mr.Chudasama, has further submitted that once the petitioners, who have opted to go on deputation and repatriated even after they have opted to go on deputation more than once, their cases would be governed as per the paragraph No.7 of the Resolution / Policy dated 01.04.2022 and their seniority is required to be considered from the original school from which, they were initially on the first occasion opted to go on deputation. So far as the second category of teachers / BRC / CRC is concerned, he has submitted that the said clause No.8 of the Resolution dated 01.04.2022 will not apply in the cases of such petitioners, as they have opted to go on deputation prior to the issuance of the Resolution between the years 2017 and 2018. It is submitted by him that if the petitioners would have known that they will loose their seniority on tendering their resignation as BRC / CRC on their being repatriated to the original school, they would have never opted for deputation. It is submitted by him that the aforesaid provision cannot have retrospective effect of taking of their right of seniority of their mother school, merely because they have tendered their resignation before issuance of the said resolution. In support of his submissions, he has placed reliance on the judgment of the Apex Court in the case of Chairman, Railway Board Vs. C.R. Rangadhamaiah, 1997 (6) SCC 623. Thus, he has submitted that the Page 5 of 17 Downloaded on : Fri Dec 23 23:51:19 IST 2022 C/SCA/23092/2022 JUDGMENT DATED: 24/11/2022 respondents may accordingly be directed to consider the seniority of the petitioners from the date of posting in the mother school i.e. the school in which they were working prior to being opted to go on deputation for the first time by ignoring the date of posting / repatriation on the school after the second deputation.
8. In response to the aforesaid submissions, learned Assistant Government Pleader Mr.Raval, on instructions of the Officers, who are present before this Court, has submitted that so far as the first category of the teachers, who have opted to go on deputation as BRC / CRC and URC is concerned, the cases of the petitioners will be governed by clause No.7 and their seniority will be counted from the parents school / mother school, from which, they were opted for deputation on being repatriated. However, it is submitted that if in case such BRC / CRC are declared surplus, they will loose their seniority and the seniority would be counted from the last school from which they were sent on the deputation.
8.1 Learned Assistant Government Pleader has further submitted that as per the provisions of paragraph No.7 of the Resolution dated 01.04.2022, after a teacher, who has opted to go on deputation as CRC / BRC and URC on the second occasion and on being their repatriated, they will loose their seniority of the mother school, in which they were posted prior to their first deputation and their seniority is required to be counted from the last school when they opted for deputation. It is thus submitted that the seniority of the petitioners will not Page 6 of 17 Downloaded on : Fri Dec 23 23:51:19 IST 2022 C/SCA/23092/2022 JUDGMENT DATED: 24/11/2022 get disturbed, if they are repatriated to their original school in case of their first deputation and accordingly, they are required to be posted at their original school, from which they opted to go on to deputation.
8.2 Learned Assistant Government Pleader Mr.Raval, has further submitted that the validity of Clause 7 of Chapter-H is already upheld by the Coordinate Bench of this Court in the judgment dated 18.07.2022 passed in Special Civil Application No.11696 of 2022. It is submitted that Letters Patent Appeal No.980 of 2022 filed against the said judgment, is pending before this Court.
8.3 Learned Assistant Government Pleader Mr.Raval, has further submitted that so far as the second category of the BRC, URC and CRC is concerned, who have tendered their resignation and got repatriated in such cases, they will loose their seniority, since the State Administration has to suffer because of their such repatriation, as the post of BRC / CRC will fall vacant. Hence, as per the provisions of Clause-8 of the Resolution dated 01.04.2022 they will loose their seniority.
8.4 Learned AGP has further placed reliance on the definition as contained in Clause 11 of Chapter-B of the Policy dated 01.04.2022 and has submitted that seniority of such teachers will be governed from the last school, from which they were declared surplus for deciding their transfer. Thus, it is submitted that the writ petition may not be entertained.
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9. I have heard the learned advocates for respective parties. I have also perused the relevant documents.
CONCLUSION :
10. As noticed hereinabove, the present group of writ petitions arise from the interpretation of the policy dated 01.04.2022. The policy of transfer of teachers in the State of Gujarat is in the state of flux right from its inception. Prior to the aforesaid policy, there were 24 administrative instructions issued by the State Government each clarifying the earlier policies, which has flooded this Court with various litigations, as the teachers on the last occasion, before the transfer camps are being held, are orally instructed that their applications or requests for transfer are not accepted. There are no written orders passed by the respondent authorities declining to accept their applications either online or offline and the teachers are made to rush to this Court with various writ petitions. The Court has also perused the policy dated 01.04.2022, which contains Chapters up to U having various clauses only explaining the regulations of transfer of teachers in the State of Gujarat. The policy runs into almost 50 pages. After 01.04.2022, another policy is also issued i.e. dated 14.10.2022. The same is issued since the Coordinate Bench of this Court has set aside two clauses of the policy dated 01.04.2022. The Court is at pains to notice that instead of coming with concise explanatory policy, the State authorities keep on experimenting with the policy of the transfer of the teachers and as and when the new policy is formed, the same is subject matter of challenge before this Court, and after such clauses are set aside, the State again comes with fresh policy.
Page 8 of 17 Downloaded on : Fri Dec 23 23:51:19 IST 2022C/SCA/23092/2022 JUDGMENT DATED: 24/11/2022 The teachers as well as this Court face inconvenience because of the dicey policy framed by the State authorities. Due to frequent change in the policy, the fundamental issue which crops up in various writ petitions, is the applicability of new policy or the old policy. Thus, it is high time that the State Government frames a lucid and concise policy regulating the seniority and transfer of the teachers by taking into confidence all the stake holders.
11. So far as the merit of the present matters are concerned, with regard to the Category-A of the BRC and CRC concerned, their cases would fall under Clause-7 of Chapter-H, which read as under : - (translated version from original Gujarati version) "(7) The primary school teachers of the state are appointed on Deputation as BRC/CRC/URC or elsewhere under Samagra Shiksha Abhiyan in the state of Gujarat. If they (these teachers) are sent back as Vidhya Sahayak / Teacher by the State Government - OR - on completion of their prescribed deputation period ; then they are to be sent back to the same school from which they went on deputation, irrespective of the fact that establishment of that school is full (balanced). On doing so, if there is surplus (of Staff) in the concern department/subject in that school, then such excessiveness shall be adjusted in the next Surplus-Shortfall camp of BRC/CRC/URC or others. Period of deputation shall be counted as if they have employed in the same school, i.e, the date of reporting of duty in that school before his deputation shall be counted to remove the excessiveness and the same date (of reporting) shall be counted for all types of transfers.
(8) If the BRC/CRC/URC or others returns back (reverts) from their deputation in Vidhya Sahayak / Teacher before the prescribed time limit of their deputation by giving registration - OR- If the deputation is canceled by D.P.C., then they are to be returned to their own school which was previous to the deputation. But in such case, the date of resumption Page 9 of 17 Downloaded on : Fri Dec 23 23:51:19 IST 2022 C/SCA/23092/2022 JUDGMENT DATED: 24/11/2022 (for second time) in one's own school after the order of cancellation of deputation shall be considered as the date of resumption in the school for all types of transfers."
12. A close reading of the aforesaid clauses would reveal that the same is very difficult to decipher, however, it appears that the aforesaid clauses mean that teachers, who were opted to go on deputation as BRC / CRC / URC on being repatriated, they would be placed at their original schools and they would be considered as surplus by taking into the posting of their original school. Clause-7 nowhere provides any contingency, which has been raised in the present petition i.e. if a teacher, who has opted to go on deputation on the second occasion and on being repatriated, whether he would loose his seniority of the original mother school, in which he was posted i.e. the school prior to the first deputation. So far counting of seniority of the mother school on repatriation by BRC / CRC / URC, after their first deputation is concerned there is no cavil amongst the respective parties. It is admitted by the respondent authorities that in case of the first deputation, if the coordinators are repatriated, their seniority will be governed from the date of appointment in mother school from which they are sent on the first deputation. However, the State authorities are denying the seniority from being counted from the mother school in case of the second deputation. It is the case of the respondents that in case of the second deputation, the petitioners will loose their seniority and their seniority will be counted from the date of the last school when they have opted for deputation. Such action of the respondents does not reconcile with the provisions of Clause-7. The respondents Page 10 of 17 Downloaded on : Fri Dec 23 23:51:19 IST 2022 C/SCA/23092/2022 JUDGMENT DATED: 24/11/2022 cannot take shelter under Clause-11 of Chapter-B of the policy since, the same will not govern in the cases of repatriation. The entire policy is silent on the aspect of counting of seniority of BRC / CRC / URC in the case of repatriation in cases of the second deputation. If such eventuality would have been clarified in the earlier policy when the petitioners opted for going on the second deputation, probably they would not have opted to go deputation which would entail the consequence of their loss of seniority of mother school.
13. In the writ petition being Special Civil Application No.23092 of 2022, the facts suggest that the petitioner was originally appointed on 24.04.2001 and on her demand of transfer, she was transferred on 05.07.2003 from Dalisana Primary School, Taluka Kheralu to Bhanavas Primary School, Taluka Satlasana and thereafter the petitioners have again sought Taluka transfer on 18.02.2007 from Bhanavas Primary School, Taluka Satlasana to Sabalpur Taluka Vadnagar. The petitioner opted to go on deputation of the CRC Coordinator in Kahipur Cluster, Taluka Vadnagar, District Mehsana on 28.11.2011. Thereafter, she was repatriated as per the earlier policy of resolution dated 23.05.2012 in the year 2017, however, since there was no vacancy in her mother school, i.e. Sabalpur Primary School, Taluka Vadnagar, she was appointed outside Taluka i.e. Dabhoda Primary School, Taluka Kheralu, District Mahesana. Again the petitioner opted for deputation of BRC / CRC and URC Coordinator in the year 2017, and accordingly, she was sent to deputation as BRC / CRC on 05.02.2018. Thereafter, the petitioner resigned as a Coordinator and hence, was repatriated on 01.11.2018 i.e. Page 11 of 17 Downloaded on : Fri Dec 23 23:51:19 IST 2022 C/SCA/23092/2022 JUDGMENT DATED: 24/11/2022 prior to issuance of policy dated 01.04.2022. The respondent authorities have considered the seniority and have refused to accept the application form for inter-district transfer by counting her seniority from 2017 when she was appointed or posted on the school from which she was sent for deputation on the second occasion by ignoring her seniority from 18.02.2007 to 2017, when she was repatriated after the first deputation period was over. The respondent authorities instead of counting her seniority from 2007 are taking appointment of the subsequent school after the second deputation. Clause-7 of Resolution dated 01.04.2022 nowhere provides that a teacher will loose her original seniority of mother school after he / she is repatriated after the second deputation, but the respondents have considered for case as per Clause-8.
14. At this stage, it would be apposite to incorporate the observations made by the Coordinate Bench in the judgment dated 28.09.2022 passed on Special Civil Application No.15272 of 2020. The same are as under :
"9. Apparently, in light of the Clause 25 of the Chapter `A' of Resolution dated 25.10.2012 when read in light of the communication dated 12.08.2011, in absence of anything to show that there was a merger of schools, the petitioner's seniority ought to be considered from the date of appointment i.e. 01.01.2003 in his original mother school for over setup transfer camp, inter district transfer camp and other transfer camp. An order of transfer 02.12.2020 therefore also needs to be quashed and set aside. Order accordingly."
15. The Coordinate Bench in light of earlier policy dated 25.10.2012 read in light of the communication dated Page 12 of 17 Downloaded on : Fri Dec 23 23:51:19 IST 2022 C/SCA/23092/2022 JUDGMENT DATED: 24/11/2022 12.08.2011 has held that the petitioner or the teachers' seniority ought to be considered from the date of posting in their original mother school or over setup of transfer camp of intra-district transfer after the repatriation of such BRC/ CRC/ URC. In the present case, as noticed hereinabove, the only difference is that the petitioners have gone on deputation on the second time and on being repatriated in the school from which they have opted to go on deputation, the respondents have sought to wipe out their seniority from the date of posting of mother school from which they, who have opted to go on deputation on the first occasion. Such an action is not contemplated in paragraph No.7 of Chapter-H.
16. So far as the provision of Clause-8 of Chapter-H of resolution dated 01.04.2022 is concerned, which governs the case of those petitioners, who have chosen to resign as coordinators from the deputation, (such as petitioner of Special Civil Application No.23092 of 2022) it would be apposite to incorporate the observations of the Constitution Bench of Supreme Court in the case of C.R. Rangadhamaiah (supra), 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 already available to the employee under the existing rule is arbitrary, Page 13 of 17 Downloaded on : Fri Dec 23 23:51:19 IST 2022 C/SCA/23092/2022 JUDGMENT DATED: 24/11/2022 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)."
17. In the present cases, all the teachers have opted for repatriation before the policy dated 01.04.2022 was framed. The respondent authorities have sought to implement Clause-8 of the said policy and have denied the seniority of such teachers, who have resigned and have again repatriated to their original post as a teachers by placing reliance on Clause- 8 of Resolution dated 01.04.2022. As held by the Apex Court in the aforementioned judgment, the expression(s) "vested rights" or "accrued rights" can be used in the context of 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 is held that such an amendment having retrospective operation, which have the effect of taking away the benefits already available to the employee under the existing rule, was declared as arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution of India.
18. In the present case, the respondents have sought to take away the accrued rights of the petitioners with regard to seniority by invoking Clause-8 of the policy dated 01.04.2022 of Chapter-H on the ground that since they have tendered their resignations, they would not be entitled to take benefit of their seniority from the date of posting in the mother school. In case Page 14 of 17 Downloaded on : Fri Dec 23 23:51:19 IST 2022 C/SCA/23092/2022 JUDGMENT DATED: 24/11/2022 the petitioners were aware of such provisions which would be fatal for their seniority, perhaps, they would not have tendered the resignation when they had opted to go on deputation as BRC / CRC. In absence of such provisions in the earlier policy or in the policy which prevailed when the petitioners tendered their resignation, the provision of Clause-8 cannot be invoked against them. Thus, such clause cannot be given a retrospective effect taking away their accrued rights of the seniority, which gave them the right of seniority to be counted from their posting in the mother school, in which they were appointed prior to their first deputation. Thus, neither Clause-7 nor Clause-8 in any manner or the entire policy incorporate or suggest that the BRC / CRC would loose their seniority, after they have been opted to go on deputation on the second occasion.
19. Under the circumstances, the respondents are directed to accept the application forms of the petitioners in the coming intra-district transfer camp by counting their seniority from their original mother school, from which they have opted to go on deputation on the first occasion. Even if they are declared as surplus on being repatriated, they will not loose their seniority on being declared surplus, as interpreted by the Coordinate Bench in the judgment dated 20.09.2022, which suggest that the teachers, who have opted to go on deputation as BRC / CRC, are to be posted in their original school only and on being declaring as surplus, they cannot loose their seniority and their seniority is required to be counted from the date of their posting in the mother school.
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20. It is directed that any orders, which are passed pursuant to the provisions of Clause-7 or Clause-8 by misinterpreting the same as mentioned hereinabove, are hereby set aside. The matter, in which, the petitioners are not issued the transfer orders by invoking the aforesaid clause, the respondents are directed to release the same and post the petitioners as per their transfer orders.
21. It is expected from the State Government to come out with a concise and clear policy, which may not give rise to any ambiguity, so that the teachers may not have to approach, at the time when the camps are to be organized. Though, this Court can only hope that such policy is framed or existing policies are suitably explained so that the petitioners can be aware about their position prior to their camps, which are organized for inter-district or intra-district or surplus camps. All the aspects are required to be clarified in advance, so that teachers can know the issues which they are facing or they have to face.
22. Another aspect, which is noticed by this Court, is that in none of the matters written orders are passed. The policy dated 01.04.2022, specifically provides for filing an appeal against any order, more particularly Chapter-U, which provides for appeal against the Committee of four members as mentioned therein against any adverse action, however since no written orders are passed, the petitioners are constrained to approach this Court directly. Thus, despite the availability of an alternative remedy, in absence of such any orders, which would clarify the stand of the respondent authorities, the Page 16 of 17 Downloaded on : Fri Dec 23 23:51:19 IST 2022 C/SCA/23092/2022 JUDGMENT DATED: 24/11/2022 teachers are constrained to file a writ petition before this Court. Hence, the respondent authorities are directed to pass written orders and communicate the reasons of rejection or non-acceptance of online application forms. Such orders may also incorporate availing of an alternative remedy of filing an appeal challenging such action before the Committee. The forms, which are already filled-up by the petitioners for the category of such petitioners for intra-district transfer shall be accepted by the concerned authorities, in case they are not accepted only for the issue for which the present writ petitions are filed.
23. With the aforementioned observations and directions, the present group of petitions are allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.
Sd/-
(A. S. SUPEHIA, J) MAHESH BHATI Page 17 of 17 Downloaded on : Fri Dec 23 23:51:19 IST 2022