Gujarat High Court
Manish Ishverbhai Parmar & 9 vs State Of Gujarat & 2 on 11 April, 2017
Author: S.G. Shah
Bench: S.G. Shah
C/SCA/143/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 143 of 2017
With
SPECIAL CIVIL APPLICATION NO. 1744 of 2017
With
SPECIAL CIVIL APPLICATION NO. 1902 of 2017
With
SPECIAL CIVIL APPLICATION NO. 1668 of 2017
With
SPECIAL CIVIL APPLICATION NO. 1673 of 2017
With
SPECIAL CIVIL APPLICATION NO. 1762 of 2017
With
SPECIAL CIVIL APPLICATION NO. 1595 of 2017
With
SPECIAL CIVIL APPLICATION NO. 1365 of 2017
With
SPECIAL CIVIL APPLICATION NO. 2116 of 2017
With
SPECIAL CIVIL APPLICATION NO. 1633 of 2017
With
SPECIAL CIVIL APPLICATION NO. 4373 of 2017
With
SPECIAL CIVIL APPLICATION NO. 2768 of 2017
With
SPECIAL CIVIL APPLICATION NO. 950 of 2017
With
SPECIAL CIVIL APPLICATION NO. 5599 of 2017
With
SPECIAL CIVIL APPLICATION NO. 5635 of 2017
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SPECIAL CIVIL APPLICATION NO. 5650 of 2017
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SPECIAL CIVIL APPLICATION NO. 658 of 2017
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SPECIAL CIVIL APPLICATION NO. 5261 of 2017
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C/SCA/143/2017 ORDER
SPECIAL CIVIL APPLICATION NO. 1437 of 2017
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SPECIAL CIVIL APPLICATION NO. 1659 of 2017
With
SPECIAL CIVIL APPLICATION NO. 1666 of 2017
With
SPECIAL CIVIL APPLICATION NO. 11361 of 2016
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SPECIAL CIVIL APPLICATION NO. 5881 of 2017
With
SPECIAL CIVIL APPLICATION NO. 7067 of 2017
With
SPECIAL CIVIL APPLICATION NO. 7069 of 2017
With
SPECIAL CIVIL APPLICATION NO. 7204 of 2017
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SPECIAL CIVIL APPLICATION NO. 7212 of 2017
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SPECIAL CIVIL APPLICATION NO. 7214 of 2017
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SPECIAL CIVIL APPLICATION NO. 7219 of 2017
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SPECIAL CIVIL APPLICATION NO. 7229 of 2017
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CIVIL APPLICATION NO. 4844 of 2017
In
SPECIAL CIVIL APPLICATION NO. 950 of 2017
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MANISH ISHVERBHAI PARMAR & 9....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR SHALIN MEHTA, SR. COUNSEL WITH MS. VIDHI J. BHATT, ADVOCATE
for the Petitioner(s) No. 1 - 14
MR GAURAV CHUDASMA, ADVOCATE for the Petitioner(s) No. 1 - 4
MR BM MANGUKIYA, ADVOCATE for the Petitioner(s) No. 1 - 10
MS BELA A PRAJAPATI, ADVOCATE for the Petitioner(s) No. 1 - 10
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C/SCA/143/2017 ORDER
MS MANISHA L. SHAH, GOVERNMENT PLEADER with MR ROHAN YAGNIK,
MR NIRAJ ASHAR, MR KM ANTANI and JANAK RAVAL, AGPs for the
Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE S.G. SHAH
Date : 11/04/2017
COMMON ORAL ORDER
1. Heard learned Senior Counsel Mr.Shalin Mehta with Ms.Vidhi Bhatt, learned advocate for the petitioners in concerned matters so also, learned advocate Mr.B.M. Mangukiya, Mr.Gaurav Chudasma, Mr. Hemang Shah, Mr. Bhavesh J. Patel, Mr.Vaibhav A. Vyas etc. for the petitioners in respective petitions and learned Government Pleader Ms.Manisha L. Shah with Mr.Rohan Yagnik, Mr.Janak Raval, Mr.Niraj Ashar and Mr.K.M. Antani, learned Assistant Government Pleaders for the Respondent/s. Perused the record of several petitions.
2. All these group matters are either ordered to be connected or tagged with each other or simply listed on the same day because all such petitions arise out of the same exercise of respondents, i.e. placing / posting primary teachers of the State from one school to another school in the Academic Year 2016 17 considering the actual requirement of total number of teachers in particular school Page 3 of 28 HC-NIC Page 3 of 28 Created On Fri Jul 14 00:09:07 IST 2017 C/SCA/143/2017 ORDER based upon widely known term as surplus teacher from particular school. Concept of such scheme has been arrived at based upon actual number of students available in particular school in particular year. Thereby, when it is quite clear and common for years together that in every school of the State, there would be change in total number of students in every academic year and, therefore, requirement of total number of teachers in every such school would be different and dependent upon total number of available vacancies based upon numbers of students only. In view of such situation, every year, there is necessity to post the surplus teacher from one school to another school. Such different posting can be termed as `general transfer' though there is a submission that the actual appointment of all such teachers is on nontransferable post. But such transfer and posting is in existence for couple of years and, therefore, it may be termed in whatsoever manner i.e. posting in different schools or transfer in different school, the fact remains that as and when there is surplus teacher in any school, then, he / she may be posted or transferred to some other schools where there is requirement of more teachers considering total number of Page 4 of 28 HC-NIC Page 4 of 28 Created On Fri Jul 14 00:09:07 IST 2017 C/SCA/143/2017 ORDER students available for that particular academic year.
3. For such purpose and particularly to extend reasonable benefit to all such teachers, the State Government has come forward with different policies at different points of time. At present, such transfer policy is governed by Government Resolution dated 23.5.2012 which is issued pursuant to provision under Section 54 of the Gujarat Primary Education Act, 1947 and, therefore, effect of rules is framed under the Act. Therefore, while posting i.e. transferring any teacher from one school to another school, such Rules are required to be followed in its true perspective.
4. At present, all such petitions are arising during such general transfer which is coupled with posting of several teachers who are repatriated from the post of `Cluster Resource Coordinators' and `Block Resource Coordinators' (For Short `CRCBRC') and more particularly for interpretation and implementation of different provisions of Rules in the form of Government Resolution dated 23.5.2012.
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5. It is also needed to be recollected here that though all the petitioners are initially appointed as primary teachers, because of the requirement by the government for last couple of years, some of them were deputed as CRC BRC with respective authorities under Director of State Project and Commissioner of Primary Education under Sarva Shiksha Abhiyaan Scheme. Since all of them were deputed as such their basic identity or service condition as a primary teacher remains intact and, thereby, as and when their services were not required by such authority being Director of State Project and Commissioner of Primary Education under Sarva Shiksha Abhiyaan Scheme, they are required to be repatriated. The basic principle of such deputation and repatriation is quite clear and simple that as and when somebody is repatriated to his parent department, his service condition would remain the same but by all means, none of such condition would come as a matter of right to any such deputationist to be placed at the same place from where he was sent or posted on deputation. Therefore, though all such service conditions would remain same including protection of pay, designation from which he was deputed and all other financial Page 6 of 28 HC-NIC Page 6 of 28 Created On Fri Jul 14 00:09:07 IST 2017 C/SCA/143/2017 ORDER benefits that may be available to him on the date of deputation, it cannot be said that he must be posted on the same post from where he was deputed with some other department. There is simple reason for such concept that the day on which any such employee is deputed to any other authority, thereafter, there must be some other posting by some other employee to carry out the duties which he was carrying out and, thereby, the person who was sent on deputation cannot imagine and say that after my deputation, nobody is allowed to work on my post throughout the period of his deputation. Therefore, as and when any person is repatriated to his parent department though he has a lien on the service conditions, he cannot have a lien to be posted at particular post and that too at particular place / station.
6. During last couple of months, it seems that because of repatriation from the Sarva Shiksha Abhiyaan, there was necessity of posting of all such persons in their parent department but as discussed above, when somebody else is already working at the place from where all such persons were deputed, respondents could not assign them posting at the same place i.e. the same school from Page 7 of 28 HC-NIC Page 7 of 28 Created On Fri Jul 14 00:09:07 IST 2017 C/SCA/143/2017 ORDER where they were sent on deputation. Therefore, most of them have rushed to this Court with a prayer to direct the respondents to assign them posting at the same place / school from where they had been deputed.
7. At this stage, it would not be out of place to recollect that in general, deputation can never be without the consent of the concerned employee and in this set of petitions, as it is disclosed, all of them have come forward to accept deputation on their own and, therefore, now, they cannot raise a grievance against the respondent authorities that once they were sent on deputation, then, how they are not extended reasonable benefit on repatriation. One more thing that needs to be recollected here is that when there is issue regarding repatriation of such deputationist, many of them have challenged such decision of repatriation. However, they lost their claim on the post of deputation upto the Hon'ble Supreme Court of India which has categorically confirmed that deputationist does not have a lien on such post and it would be always subject to the requirement of the concerned authorities to continue them as such or not.
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8. Therefore, there was no role of the present respondents at all either to select any of the present petitioners to be sent on deputation or to recall them on particular post and not to offer a selective posting as per their personal whims and desires or even on the count of seniority.
9. The real issue starts from this point when all such petitioners were repatriated on account of Sarva Shiksha Abhiyaan Scheme and when they are required to be posted in their parent department i.e. in the school being run by the respondents.
10. Though it is argued and submitted that all such postings are nontransferable and, therefore, they cannot be transferred or posted to any other school, as already discussed hereinabove, it is a common phenomenon for decades together that such teachers are being posted i.e. transferred from one school to another school based upon total number of students which concept is ultimately termed as transfer of surplus teachers.
11. In view of such situation, the Government Resolution dated 23.5.2012 is providing for Page 9 of 28 HC-NIC Page 9 of 28 Created On Fri Jul 14 00:09:07 IST 2017 C/SCA/143/2017 ORDER all details of such posting / transfer for different reasons and based upon different considerations namely; (1) transfer on request, (2) mutual transfer, (3) transfer outside the District, (4) transfer because of illness and (5) transfer on administrative ground. In addition to above referred reasons for transfer, the Rules also provide for considering period for transfer, benefit to be extended in case of widow, in case of couple teachers i.e. husband and wife who are working as teachers so far as general transfers are concerned. The Rule, thereafter, also provides for certain norms for transferring surplus teacher and also for posting of teachers who are being repatriated from the post of CRC BRC.
12. Since at present, most of the petitions are with reference to the posting because of repatriation, the relevant clause (25) of Chapter (ka) in such Government Resolution dated 23.5.2012; this Court has already described and instructed the respondents how to interpret such clause and how to proceed further for the posting of teachers on their representation by orders, dated 17.3.2017 and 24.3.2017 in Special Civil Application No.143 of 2017 and allied matters, wherein relevant Page 10 of 28 HC-NIC Page 10 of 28 Created On Fri Jul 14 00:09:07 IST 2017 C/SCA/143/2017 ORDER paragraphs reads as under: ORDER DATED 17.3.2017:
"2. At this stage, for all such matters, let there be common directions to the respondents, so as to avoid multiplicity of litigation as well as repeated litigation from different districts. Such directions are required considering the fact that litigants from different districts so also officers of different districts are interpreting the same Government Resolution either differently or its understating by either of them, are different at different points of time. Therefore, at present, to avoid multiplicity of litigation, it would be appropriate to immediately convey by appropriate mode to all the concerned officers in all the districts of the State that while absorbing teachers, who are repatriated from the post of CRC/BRC, the provisions of Clause Nos.10 (v) and 25 of the Government Resolution dated 23.05.2012 shall be strictly adhered to without fail. Whereby, whenever any CRC / BRC is repatriated to its parent department, initially he must be considered for posting at the same school from which, he was sent on deputation and if there is no vacancy considering surplus teachers at that place, he shall be accommodated at the school of same pay centre. If there is no vacancy in any school of same pay centre, then and then only he should be posted in any school in the same taluka. If there is no vacancy in any school of the same taluka, then and then only the teacher should be posted at nearby taluka, wherever there is vacancy.Page 11 of 28
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3. While considering such posting, seniority of such teacher is to be considered as per his original seniority i.e. his berth in the cadre and his seniority in the school from which, he was sent on deputation.
3.1 Thereby, it may happen that a person may be junior on the date of deputation may not be junior on the date of repatriation or if on the date of deputation any such teacher is senior but having no seniority in the same school on the date of repatriation. Such directions are to be followed irrespective of order of repatriation by orders dated 17.12.2016 of 22.12.2016 for all concerned without fail.
4. In view of such observations, now respondents are directed to convey all District Officers accordingly and thereby all the officers in all the districts shall strictly follow such directions without fail.
5. So far as individual case details are concerned, respondents are directed to prepare a comparative chart so as to take up each matter separately for redressal of individual grievance. Based upon such detailed information, final order shall be passed in each matter, considering the facts and details of each case.
ORDER DATED 24.3.2017:
"1. As already confirmed by order dated 17.3.2013, since repatriation of concerned teacher is prior in time to general transfer, initially an exercise of posting based upon Page 12 of 28 HC-NIC Page 12 of 28 Created On Fri Jul 14 00:09:07 IST 2017 C/SCA/143/2017 ORDER repatriation is to be completed. During such exercise, the seniority of the teacher in his parent school i.e. school from which he has been sent for deputation and where he is to be posted on repatriation is to be considered and counted for his posting.
2. Exercise of general yearly transfer is generally takes place only at the end of educational year and thereby not in December but somewhere in March and therefore, issue regarding surplus teacher in particular school is to be taken care of only after exercising option as per the direction no.1 above.
3. However, it would be appropriate for the respondents not to pass separate order with regard to direction no. 1 but initially, they must complete the execution of both above directions there end and thereafter, they may pass appropriate order of posting of particular teacher in particular school. While doing so, if some teacher is to be transferred twice or pursuant to both the directions then in that case, it would be sufficient to pass only one transfer order and thereby posting order so as to avoid traveling and joining by such teacher in both the school one after another.
4. So far as extending the benefit of clause 10 (V) of Government Resolution dated 23.05.2013 is concerned, it is extending the benefit to husband and wife to be posted at the same place or at the nearby places. Considering the fact that otherwise also such benefit is to be extended only at the time of yearly Page 13 of 28 HC-NIC Page 13 of 28 Created On Fri Jul 14 00:09:07 IST 2017 C/SCA/143/2017 ORDER general transfer, it is to be considered only at the time of executing direction no. 2 herein above and not at the time of executing direction no. 1 herein above i.e. while posting any teacher on his repatriation.
5. After, completing the exercise as per the directions no. 1 and 2 above, if there are any surplus teachers in any school or if there is any vacancy in any school which is arising from any reason then all such posting shall be completed only after execution of directions no. 1 and 2 above.
It is made clear that for completing above exercise, the respondents have to hold camp(s) and therefore, all the teachers in the State are directed to remain present in respective camp(s), as and when it is held. If any, teacher has any grievance which is not redressed in the above directions, then he/she can approach this Court for appropriate direction if any required."
13. At present, respondents have come forward with a clear disclosure that they have strictly abides by such orders while considering the posting of all such teachers. To recollect the basic direction of above two orders, it can be said that this Court has specifically directed the respondents to first complete the exercise of assigning posting to all the teachers who are repatriated strictly following Clause (25) of Page 14 of 28 HC-NIC Page 14 of 28 Created On Fri Jul 14 00:09:07 IST 2017 C/SCA/143/2017 ORDER Chapter (ka), considering that general transfer as per surplus teacher which is a yearly activity whereas posting of teachers on deputation would be only a one time activity.
14. However, during implementation of such directions, now, some of the teachers have come forward with a different interpretation of Clause (25).
15. On behalf of such group of teachers, it is submitted by concerned learned advocates that whenever any such teacher is to be posted on repatriation, considering his seniority of parent school, he must be posted in the same school. Thereby, what is submitted before this Court is to the effect that as and when somebody is repatriated, irrespective of requirement of total number of teacher in that school, such teacher must be posted in the same school i.e. the parent school and, thereby, if somebody becomes surplus in mid term or whatsoever the position may be, repatriated teacher must be accommodated in that school. Whereas, on bare reading of Clause no.25 in Chapter (ka), it becomes specifically clear that though seniority of the parent school is to be considered while Page 15 of 28 HC-NIC Page 15 of 28 Created On Fri Jul 14 00:09:07 IST 2017 C/SCA/143/2017 ORDER posting any such teacher on repatriation, such seniority is to be counted in parent school only if there is a vacant post and not otherwise.
16. Thereby, for any reason, if there is a vacant post in a parent school from where any teacher had been sent on deputation as and when he is repatriated, he can be posted at the place at such serial number as per his seniority in that school on the date of deputation. Therefore, though such repatriated teacher may have a benefit of seniority in case of vacancy in the parent school, it cannot be said that even if there is no vacancy in that school, he must be posted in the same school, more particularly, when Clause (25) specifically confirms that in that case, he needs to be posted to the nearest school from his parent school within the same pay center and if there is no vacancy or vacant post in any of the school within pay center, then, in a school of same Taluka when there is a vacancy and if there is no vacancy in any school of the same Taluka, then, in school of nearby Taluka wherever there is vacancy.
17. Therefore, the basic requirement for Page 16 of 28 HC-NIC Page 16 of 28 Created On Fri Jul 14 00:09:07 IST 2017 C/SCA/143/2017 ORDER repatriation irrespective of such clarity in Clause (25) of the Government Resolution is quite clear that person can be posted only at a place where there is a vacancy. If there is no vacancy of particular post on a given date, then, no employee can be posted at such post or place only because he had been sent on deputation from such post or place. Therefore, I do not find any reason or substance in the submission by learned advocates on behalf of the petitioners and, therefore, there is no reason to interfere with the activities of the respondents at this stage.
18. It goes without saying that since the posting of teachers who are back because of repatriation has taken place as per directions of this Court in order dated 17.3.2017 and 24.3.2017, respondents have initially taken care of such posting and since yearly general transfer because of surplus teacher has to be taken care of at the end of academic year, the respondents have in subsequent camp for the purpose carried out such exercise. It is conveyed that pursuant to such two exercise in the form of different transfer camps, if somebody is to be transferred in both the exercise, Page 17 of 28 HC-NIC Page 17 of 28 Created On Fri Jul 14 00:09:07 IST 2017 C/SCA/143/2017 ORDER then only, one transfer order is to be issued so as to enable him to directly join at the place where he/she is ultimately required to serve for next academic year so as to avoid inconvenience to such person.
19. Thereby, when respondents have strictly followed the directions by this Court in its order dated 17.3.2017 and 24.3.2017 which is in consonance with the Government Resolution dated 23.5.2012, there is no reason or substance in any of the petitions so as to grant any interim relief at present.
20. Though the position is very much clear as discussed hereinabove, learned advocates for the petitioners have requested to record their submissions and, therefore, it has been summarized as under, whereby, it is submitted on behalf of the petitioners that;
(a) there must be uniformity in posting of such teachers on vacant post but respondents have failed to do so. However, except such pleading, there is no evidence to prove such fact and, therefore, there is no reason to interfere with posting orders.
(b) when deputationist retains his lien on Page 18 of 28 HC-NIC Page 18 of 28 Created On Fri Jul 14 00:09:07 IST 2017 C/SCA/143/2017 ORDER his original post and seniority, he must be posted at the same place from where he was sent on deputation. The discussion hereinabove makes it clear that there is no substance in such submission inasmuch as the deputationist may have a lien on his designation and service condition but not on particular post and place.
(c) The universal and basic principle of last come first go shall be applied at the time of posting on repatriation. However, as discussed hereinabove, there is no question of coming and going because of two simple reasons;
(i) the transfer in general based upon the total number of students and thereby surplus teacher of particular place are to be posted at other place, whereas so far as deputationist and repatriation is concerned, the situation is such that when somebody has selected to serve on deputation on some other post, it is his choice and, therefore, it cannot be considered as last come first go situation.
(ii) It is also submitted that if exercise as discussed herein above is continued it would result into accommodating junior to the Page 19 of 28 HC-NIC Page 19 of 28 Created On Fri Jul 14 00:09:07 IST 2017 C/SCA/143/2017 ORDER petitioners. Such submission is also misconceived, in as much as, there is no question of accommodating junior when present petitioners are repatriated from other departments. They have selected deputation on CRC/BRC on their own and they are there since couple of years and as already discussed herein above, if anyone has selected to go on deputation, he or she cannot say that even if I am allowed to be on deputation, my post shall be kept vacant. Therefore, there is no question of accommodating any junior. It is quite clear that on the date of repatriation if n number of teachers are available as per requirement of particular school, repatriated teachers would not be accommodate to their juniors as they are serving in such school because of requirement of concerned school because of the concerned school's requirement. Therefore person coming back on repatriation in parent department cannot claim that my junior should not be accommodated on my place in the school from where he was deputed which is known as parent school.
(iii) It is also submitted that because of above two exercises, some of the teachers have been transferred beyond 90 to 100 kms.
Page 20 of 28HC-NIC Page 20 of 28 Created On Fri Jul 14 00:09:07 IST 2017 C/SCA/143/2017 ORDER from their parent school and that in some cases orders are not issued and, therefore, they could not challenge such order or object the same by assigning reasons for not accepting such transfer beyond 100 kms. Though I do not want to be harsh in language in any manner while dealing with such issue, the learned Government Pleader has rightly pointed out observations in judgment dated 14.02.2017 in Special Civil Application No. 5959 of 2015 and allied matters wherein paragraph No. 7.10 read as under:
"7.10 This Court finds that the very foundation of these petitions is the ill nurtured myth by the petitioners, who are no less than the head teachers, that their appointments are primarily for their employment, and imparting education to the children is the incidental benefit to the society. The teachers need to be told in no uncertain terms that their appointments are primarily for the education of the children and creation of employment opportunities for them, though important but is an incidental benefit and in no case, it can be put above the interest of the children and thereby of the society on the whole. Showing distance by the petitioners between their place of residence and the schools where they are posted, only reflects their concern for their illperceived, non existent right."
(iv) Thereby, it becomes clear that present set of petitioners have initially selected to Page 21 of 28 HC-NIC Page 21 of 28 Created On Fri Jul 14 00:09:07 IST 2017 C/SCA/143/2017 ORDER go on deputation on the post of CRC/BRC on their own, they served there for long and when many of them have challenged such repatriation, it is clear that they were enjoying their deputation on CRC/BRC and when they are repatriated, they are finding fault with the government. It is settled legal position that the transfer is sine qua non after joining services and in absence of specific malafide and special reason, one cannot say that he/she is not suppose to transfer only because he/she is not comfortable with such transfer. Therefore, there is no substance in the submission regarding ignoring seniority of the petitioners. On the contrary, as and when there is vacancy on particular posts, the seniority of the petitioners is going to be counted. Therefore, if it is his luck and fate to get the particular school, then he cannot blame the system that I am not getting benefits of seniority.
(v) It is also submitted that there is apparent mistake in clause (25) of the Government Resolution when it is stated that seniority is to be counted but vacancy is not to be considered at the time of repatriation. in that case, those petitioners are trying to Page 22 of 28 HC-NIC Page 22 of 28 Created On Fri Jul 14 00:09:07 IST 2017 C/SCA/143/2017 ORDER blow both hot and cold at the same time, in as much as, they are accepting the conditions which are beneficial to them, and when only one condition is not comfortable to them they are blaming that such condition is not proper. It is settled legal position that entire rules are to be read in harmony with all the provisions together and it cannot be separated and therefore, there is no substance in the contention that while implementing clause (25) of the Government Resolution i.e. seniority is to be counted first irrespective of any condition and position of the employee and then no other things are to be considered. Therefore, there is no substance in the submission that senior is entitled to be placed at the post of his selection and his choice.
(vi) It is also submitted that because of exercise as referred herein above, pursuant to clause (25) of the Government Resolution and order dated 17.03.2017 some of the couple has to now serve at a long distance. I failed to realize that when on deputation, these couples have continued their services at different places and now why they are demanding same place of service. However, in any case, the Government Resolution and Page 23 of 28 HC-NIC Page 23 of 28 Created On Fri Jul 14 00:09:07 IST 2017 C/SCA/143/2017 ORDER previous orders are very much clear whereby immediately after completing the exercise of posting because of repatriation and exercise of posting because of surplus teachers, by all means, department is going to take care of issues like transfer of husband and wife or transfer because of ill health but it cannot be said that everyone will get all the benefits, at the earliest and irrespective of all the issues which may arise, which are beyond control of the employer viz. declaration of election and thereby code of conduct so as to complete particular activity in time bound schedule.
(vii) It is also submitted that seniority in the parent school shall remain intact. However, there is no substance in this submission, when employer is ready to consider the seniority of parent school, it does not give absolute constitutional right to the particular person irrespective of all other aspect.
21. Some of the petitioners are raising slightly different issues i.e. though they have resigned from the post of CRC/BRC or those who have repatriated in the first round and who are already posted in particular school.
Page 24 of 28HC-NIC Page 24 of 28 Created On Fri Jul 14 00:09:07 IST 2017 C/SCA/143/2017 ORDER Some of the petitioners are also raising the issues that transfer camps were not hold in time and, therefore, now they could not be disturbed while performing the exercise as per the directions of this Court. The simple answer to such grievance is to the effect that not holding camp as per schedule was not within the control of respondent and it was specific circumstances and emergency on account of code of conduct because of elections of some local bodies in some of the areas and, therefore, no fault can be found on the part of the respondents. Similarly, it cannot be ignored that most of repatriated petitioners have challenged the order till the Honourable Supreme Court and, therefore, some time has lapsed because of pendency of litigation, it cannot be said that those teachers are at disadvantage and in case of such teachers, it cannot be said that respondents have not followed the rules. It is made clear that there may be a necessity to reconsider the case of few of them who have been given posting prior to such interim relief and litigation and, therefore, only because of some of them have resigned from the post of BRC/CRC or already posted because of early repatriation, it cannot be said that in those cases, respondent has not followed Page 25 of 28 HC-NIC Page 25 of 28 Created On Fri Jul 14 00:09:07 IST 2017 C/SCA/143/2017 ORDER the rules properly and, therefore, they cannot have any specific lien at the place of particular post as claimed by them.
22. Learned advocate Mr. Nikunt Soni and learned advocate Mr. P. S. Patel for respective petitioners in respective petitions have submitted that since some of such teachers have already been posted in particular school at the relevant time prior to general order in group matter, which is referred herein above now in those cases, clause (25) of the Government Resolution is not applicable and they cannot be disturbed. However, it is made clear that each petition would be taken up separately on any such ground. In fact, same treatment is required for all teachers/petitioners and, therefore, it has been extended to all the teachers who are repatriated irrespective of their date of order of repatriation and, therefore, at this stage there is no reason to grant any interim relief to any such petitioner.
23. In view of what is stated herein above, at present so far as posting of repatriated and so far as general transfer of surplus teachers are concerned, I do not find any substance to grant any interim relief and, Page 26 of 28 HC-NIC Page 26 of 28 Created On Fri Jul 14 00:09:07 IST 2017 C/SCA/143/2017 ORDER therefore, interim relief in all such matters are hereby refused. In view of such detail order in one group, no separate orders are passed in separate petitions by when interim relief is declined, it is clear that interim relief is refused in matters which are not taken up and adjourned.
24. Therefore, now petitioners and respondents have to verify each petition separately, wherever there is grievance regarding posting based upon repatriation from CRC/BRC and transfer because of surplus teachers, those petitions can be segregated from rest of the petitions. However, petitioners, who want to raise other issue be listed separately. It is made clear that if there is no other ground or reason then those petitions shall stand disposed of based upon this order.
25. It is made clear that all the petitioners are entitled to all other benefits of all relevant Government Resolutions, which they are entitled to irrespective or this order.
26. Thereby petitioners have to join to their respective school as per transfer order as provided in conditions No.14 of page "C" of Government Resolution dated 23.05.2012.
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27. The Registrar (Judicial) is requested to depute a Section Officer or Assistant Registrar to identify the cases. Learned advocates for the concerned petitioner shall submit a note before such officer confirming that whether they want to proceed further with the matter or not.
28. The issue regarding implementation of other relevant Government Resolutions including Government Resolution dated 19.12.2014 and issue related to possibility of vacant post because of selection of option from primary division to upper primary division, retirement and promotion as Head teacher would be taken up separately in group matters for similarly situated petitioners on 18.04.2017.
29. List the matters on 03.05.2017.
(S.G. SHAH, J.) *** Vatsal/Drushti Page 28 of 28 HC-NIC Page 28 of 28 Created On Fri Jul 14 00:09:07 IST 2017