Gujarat High Court
Manishaben Laljibhai Makwana vs State Of Gujarat on 28 July, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/15604/2020 JUDGMENT DATED: 28/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15604 of 2020
With
CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 15604 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
================================================================
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 ?
================================================================
MANISHABEN LALJIBHAI MAKWANA
Versus
STATE OF GUJARAT
================================================================
Appearance:
MR SUDHANSHU A JHA(8345) for the Petitioner(s) No. 1,2,3
MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
MR NILAY H PATEL(7856) for the Respondent(s) No. 10,11,12,3,4,5,6,7,8,9
================================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 28/07/2022
ORAL JUDGMENT
1. Rule returnable forthwith. Learned advocates waive service of notice of Rule for the respective respondents. Page 1 of 12 Downloaded on : Sat Jul 30 20:17:58 IST 2022 C/SCA/15604/2020 JUDGMENT DATED: 28/07/2022
2. With the consent of the learned advocates for the respective parties, the petition is taken up for final hearing today.
3. By way of this petition, under Article 226 of the Constitution of India, the prayer in this petition by the petitioners is to quash and set aside the orders dated 9.10.2020 which were passed keeping in view the policy dated 23.5.2012.
4. The short ground on which the order of transfer is challenged is that the petitioners who were initially appointed on 12.4.1989, 19.11.1998 and 28.9.1999 opted for going to the upper primary section on 28.11.2004 and then they were serving in the schools prior to the date of transfer from 28.11.2004, 15.3.2007 and 28.11.2004.
5. The impugned order of transfer has been passed on the basis that, since the petitioners opted to go to the upper Page 2 of 12 Downloaded on : Sat Jul 30 20:17:58 IST 2022 C/SCA/15604/2020 JUDGMENT DATED: 28/07/2022 primary section in the year 2012, their seniority for the purposes for transfer have to be counted from the date of such option.
6. Mr. Sudhanshu A. Jha, learned counsel for the petitioners would rely on oral order dated 25.08.2021 passed in Special Civil Application No.15874 of 2020 of this Court in the case of Patel Meghnaben Jayantibhai v. State of Gujarat, by which, the Court has in Paragraph Nos.21 and 22 opine that reading the relevant Clauses of the GR dated 23.5.2012 seniority has to be counted from the date of their appointment in the respective schools and not from the date of their allotment in the upper primary section.
7. Mr. H. S. Munshaw, learned counsel appearing for the respondent No.2 has relied on the affidavit-in-reply filed by the District Primary Education Officer, Porbandar. He would submit that the lower primary sections and the upper primary sections are different, that the subjects in primary sections consist of Maths, Science, Language Page 3 of 12 Downloaded on : Sat Jul 30 20:17:58 IST 2022 C/SCA/15604/2020 JUDGMENT DATED: 28/07/2022 and Social Science. He would also refer to the Resolution dated 3.6.2010 laying down a ratio of students. Reliance is also placed on the Resolution dated 26.10.2020 which, according to Mr. Munshaw categorically laid down that Vidhya Sahayak / Assistant Teachers of lower primary sections will be transferable in the lower primary sections only. It is also laid down that Vidhya Sahayaks or Assistant Teachers of the upper primary sections, can be transferred only to their section.
6.1. Mr. Munshaw would also invite the attention of the Court to the relevant averments of the paragraphs in the reply which indicates that the petitioner No.1 joined as Assistant Teacher in the primary section in 1989 and later on was posted to Keshav Primary School, Porbandar on 28.11.2004. On the basis of the strength determined on 31.8.2020, there were four teachers though the required set up was of 3 and, therefore, the petitioner being the junior most was required to be transferred. Similarly, in case of the petitioner No.2, despite the required set up of 6 teachers, in all, there were 8 and, Page 4 of 12 Downloaded on : Sat Jul 30 20:17:58 IST 2022 C/SCA/15604/2020 JUDGMENT DATED: 28/07/2022 therefore, 2 including the petitioner No.2 were required to be transferred as being excess. So also in the case of the petitioner No.3, the set up as on 31.8.2020 was of 6 teachers where there were in all 8 teachers and, therefore, 2 teachers including the petitioner No.3 was required to be transferred.
8. Mr. Nilay Patel, learned counsel appearing for the private respondents would submit that in accordance with the circular dated 23.5.2012 and in view of better qualifications of the private respondents who had cleared the TAT examination, transfer in accordance with the policy and seniority i.e. to be reckoned from the date of entering into that category of upper division is just and proper.
7.1. In support of his submissions, Mr. Patel would rely on a decision of Bombay High Court in the case of Gaur Pratibha v. The State of Maharashtra & others decided on 9.4.2019 in Writ Petition No.14242 of 2018 and allied matters. He would submit that in the case Page 5 of 12 Downloaded on : Sat Jul 30 20:17:58 IST 2022 C/SCA/15604/2020 JUDGMENT DATED: 28/07/2022 before the Bombay High Court, the dispute was regarding seniority of teachers. Petitioners therein who possessed B. Ed. qualification and having rank below untrained Assistant Teachers, had challenged their seniority. It was on this issue that the Court opined that teachers who had the additional qualification should rank above in seniority.
7.2. Reliance is also placed on a decision of the Hon'ble Supreme Court in the case of Madhavi v. Chagan reported in 2021(6) ABR 378. Relying on the head-notes, Mr. Patel would submit that seniority has to be from the date of higher qualification as also is apparent from the judgment of the Hon'ble Supreme Court where the Court has considered the decision in the case of Gaur Pratibha (Supra).
7.3. Mr. Patel has also relied on a decision of the Hon'ble Supreme Court in the case of Yogendra Prasad Mandal v. State of Bihar reported in AIR 1998 SC 2590. Page 6 of 12 Downloaded on : Sat Jul 30 20:17:58 IST 2022 C/SCA/15604/2020 JUDGMENT DATED: 28/07/2022
9. Considering the submissions made by the learned advocates for the respective parties, in the decision in the case of Patel Meghnaben Jayantibhai (Supra), the Court was considering the policy of GR dated 23.5.2012 in context of transfer of teachers of the sections namely; the primary and the upper primary sections. The question before the Court was whether the seniority of the petitioners should be counted from the date of they having exercised their option to teach in the higher standards and based on such seniority can such petitioners be declared as surplus to attend transfer camp. It was in this context that, the Court, in paras Nos.18 to 22 observed 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 :
i) Government Resolution dated 23.5.2012 is a policy decision of the State Government prescribing the rules for Page 7 of 12 Downloaded on : Sat Jul 30 20:17:58 IST 2022 C/SCA/15604/2020 JUDGMENT DATED: 28/07/2022 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 September and to inform such set up as per teacher/student ratio before 31st October by each school.Page 8 of 12 Downloaded on : Sat Jul 30 20:17:58 IST 2022
C/SCA/15604/2020 JUDGMENT DATED: 28/07/2022
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 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 Page 9 of 12 Downloaded on : Sat Jul 30 20:17:58 IST 2022 C/SCA/15604/2020 JUDGMENT DATED: 28/07/2022 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 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 Page 10 of 12 Downloaded on : Sat Jul 30 20:17:58 IST 2022 C/SCA/15604/2020 JUDGMENT DATED: 28/07/2022 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."
10. A categorical finding in paragraph Nos.19 and 22 of the aforesaid judgment when read together would indicate that the Court positively opined that when preparing seniority, date of appointment in a particular school is required to be considered and not the date, on which, they had exercised options. In light of these observations, the petitions were disposed of with the direction that the cases be considered afresh in the transfer camp that may be held.
11. Since the orders of transfer under challenge in the present case are also in light of the policy of GR dated 23.5.2012, the orders of transfer dated 09.12.2020 are hereby quashed and set aside.
Page 11 of 12 Downloaded on : Sat Jul 30 20:17:58 IST 2022 C/SCA/15604/2020 JUDGMENT DATED: 28/07/2022
12. It will be open for the respondents to reconsider the case of the petitioners in light of the policy invoked i.e. 1.4.2022.
13. The petition is allowed in above terms. Rule is made absolute to the aforesaid extent. Direct Service is permitted. No order as to costs.
14. In view of allowing of the main matter, connected Civil Application does not survive. Hence, the same stand disposed of accordingly.
(BIREN VAISHNAV, J) VATSAL S. KOTECHA Page 12 of 12 Downloaded on : Sat Jul 30 20:17:58 IST 2022