Gujarat High Court
Solanki Chandrikaben Ratilal vs Dr. Vinod R Rao on 6 January, 2021
Author: Sonia Gokani
Bench: Sonia Gokani, Nirzar S. Desai
C/MCA/445/2020 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/MISC. CIVIL APPLICATION NO. 445 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 1368 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
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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SOLANKI CHANDRIKABEN RATILAL
Versus
DR. VINOD R RAO
==========================================================
Appearance:
AMITKUMAR B PARMAR(8618) for the Applicant(s) No. 1
MR JIGAR D DAVE(6528) for the Applicant(s) No. 1
MR HS MUNSHAW(495) for the Opponent(s) No. 2
NOTICE SERVED(4) for the Opponent(s) No. 1,3
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CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 06/01/2021
CAV JUDGMENT
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C/MCA/445/2020 CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE NIRZAR S. DESAI)
1. Present application under the provisions of the Contempt of Courts Act, 1971 ('the Act, 1971' for short) is preferred with the following prayers:
"(A) Your Lordships may be please to allow the present application.
(B) Your Lordships may be please to hold and declare that the opponents herein are guilty of willful disobedience of the order dated 22.01.2020 passed by the ld.single judge of this Honourable court in special civil application no:1368/2020 and further be pleased to prosecute and punish the opponents for committing of contempt of court's Act, 1971. (C) Any other and further order as may be deemed fit and proper in the facts and circumstances of the case be passed."
2. Heard learned advocate Mr.Jigar D. Dave for the applicant, learned Assistant Government Pleader Ms.Vrunda Shah for respondent no.1 and learned advocate Mr.H.S.Munshaw for respondent nos.2 and 3.
3. The facts, in nutshell, are as under:
3.1 The applicant is a physically handicapped person with 42% disability in her right leg, who was appointed as Vidhyasahayak in the year 2002 and was posted at Page 2 of 11 Downloaded on : Tue Jan 11 23:34:59 IST 2022 C/MCA/445/2020 CAV JUDGMENT Motipura Primary School, Tal.Daskroi, Dist.Ahmedabad in the school, she served till the year 2017.
3.2 She was posted at Jantanagar Primary School, Ahmedabad, Tal.Daskroi, Dist.Ahmedabad. However, on the basis of strength of students, on 31 st August, 2016, it was noticed that one post of teacher was 'in excess' and, therefore, she being the junior most was transferred.
Accordingly, when the camp was held for transfer of surplus teachers on 12.06.2017, the applicant opted for Gram Primary School at Chiloda, Tal.Dholka, Dist.Ahmedabad and since then she is serving there.
3.3 In the meantime, the applicant came to know about transfer of one Mr.Dhirenbhai Patel, who was transferred in Daskroi Taluka and though the applicant is physically handicapped person such benefit was not extended to the applicant.
3.4 Accordingly, the applicant preferred an application being No.691 of 2019 before the Court of Commissioner ( For Persons with Disabilities [hereinafter referred to as 'the Court of Commissioner'] ) and vide order dated 02.11.2019, the Court of Commissioner passed an order that if the Education Department or District Primary Education Officer has transferred Mr.Dhirenbhai Patel without taking into consideration various circulars in respect of transfer, in that case, why such benefits were not extended to the present applicant since there was Page 3 of 11 Downloaded on : Tue Jan 11 23:34:59 IST 2022 C/MCA/445/2020 CAV JUDGMENT vacancy in the Daskroi Taluka. While allowing the application, the Court of Commissioner directed the District Primary Education Officer to consider the case of the applicant for transferring her to any of the vacant post in Daskroi Taluka.
3.5 Thereafter the District Primary Education Officer, District Panchayat Education Committee, Ahmedabad preferred Review Application, under Section 81 of the Right of Persons with Disability Act, 2016, in the aforesaid case. In that application the Commissioner passed an order dated 18.01.2020.
3.6 In that application for Review, the main contention as can be seen from the order dated 18.01.2020 was that the respondent authorities have already cancelled the order of transfer in the case of Mr.Dhirenbhai Patel and since the order on the basis of which the applicant's case was directed to be considered is no where in existence and hence order in respect of the applicant is required to be reviewed. It was also submitted before the Court of Commissioner that by mistake the order in respect of Mr.Dhirenbhai Patel was passed and as that mistake was cured, the applicant cannot canvass the ground of prejudicial treatment. Accordingly, after hearing the parties, the learned Court of Commissioner, vide order dated 18.01.2020 passed in Case No.691 of 2019, rectified the order dated 02.11.2019 and held that since the District Primary Education Officer vide order dated Page 4 of 11 Downloaded on : Tue Jan 11 23:34:59 IST 2022 C/MCA/445/2020 CAV JUDGMENT 12.12.2019 has already cancelled the order of transfer passed in respect of Dhirenbhai Patel, in respect of present applicant now there is no case of differential treatment. The direction was given to consider the case of the applicant keeping in mind the circulars issued by the Education Department in respect of transfer.
3.7 After the aforesaid order dated 18.01.2020 was passed, the applicant herein preferred writ petition being Special Civil Application No.1368 of 2020 with a prayer that respondents be directed to transfer the petitioner to Geratnagar Primary School or a place nearest to the applicant's residence in view of the fact that she is a physically challenged lady having disability in her right let to the extend of 42%.
4. This Court, vide order dated 21.01.2020, disposed of the aforesaid petition with the following directions.
"4. Considering the orders passed by the Court of Commissioner, the District Primary Education Officer, Ahmedabad - respondent No.2 is directed to consider the request of the petitioner positively in accordance with the observations made by the Court of Commissioner (For Persons with Disabilities) in the order dated 18.01.2020 within a period of six weeks from the date of receipt of the writ of the order of this Court. Petition is disposed of accordingly. Direct service is permitted."
5. Though this Court, vide order dated 22.01.2020 issued direction to consider the case of the petitioner -
Page 5 of 11 Downloaded on : Tue Jan 11 23:34:59 IST 2022 C/MCA/445/2020 CAV JUDGMENTapplicant positively within a period of six weeks from the date of receipt of writ of the order, inspite of such directions as the applicant's case was not considered favourably, the applicant has preferred the present application invoking the contempt jurisdiction of this Court.
6. Heard Mr.Jigar Dave, learned advocate for the applicant, who vehemently submitted that the respondents, more particularly respondent no.2, has passed an order on 20.04.2020 whereby it is stated that since vide order dated 12.12.2019 the order of transfer of Mr.Dhiren Patel is quashed, no case is made out for different treatment to the applicant and, therefore, in respect of applicant's representation for transfer needful would be done keeping in mind various circulars issued by the Education Department. Accordingly, the applicant was directed to make an application as per the policy of the State Government. Mr.Dave, learned advocate submitted that the Hon'ble Court vide its order dated 22.01.2020 directed the respondents to consider the case of the applicant positively, it means that the only thing that was left to the District Primary Education Officer was to pass necessary order of transfer of the applicant to the nearest place from her residence. He further submitted that by misinterpreting the order passed by this Court, deliberately the Respondent No.2 has passed the order dated 20.04.2020 which amounts to willful disobedience and, therefore, for committing such contempt appropriate Page 6 of 11 Downloaded on : Tue Jan 11 23:34:59 IST 2022 C/MCA/445/2020 CAV JUDGMENT proceedings under the Contempt of Court Act may be initiated against the contemptnor. He further submitted that considering the fact that the applicant is 42% handicapped and she is transferred at a place which is 46 km far from her residence, appropriate orders may be issued against the respondents to transfer her at a place nearer to the residence of the applicant.
7. As against that, learned advocate Mr.H.S.Munshaw for the respondents vehemently opposed the present application and submitted that the respondents have not committed any contempt as the learned Single Judge vide order dated 22.01.2020 directed the respondents to consider the case of the applicant within a period of six weeks' from the date of receipt of writ of the order of this Court. He further submitted that because of nationwide lock-down with effect from 25.03.2020, an immediate decision in respect of case of the applicant could not be taken and hence the decision was taken on 20.04.2020 which was communicated to the applicant. Mr.Munshaw further submitted that the order passed by the Respondent No.2 dated 20.01.2020 cannot be said to be an order with an intention to willfully flout the directions issued by this Court. Mr.Munshaw submitted that the applicant is reading the directions issued in para:4 of the order dated 22.01.2020 in Special Civil Application No.1368 of 2020 in piecemeal and the applicant is focusing only on the word "positively" in the directions issued. In fact, while directing the authorities to consider Page 7 of 11 Downloaded on : Tue Jan 11 23:34:59 IST 2022 C/MCA/445/2020 CAV JUDGMENT the request of the applicant "positively", the Hon'ble Court has also stated "....in accordance with the observations made by the Court of Commissioner in the order dated 18.01.2020....". Meaning thereby, the authority was directed to consider the request of the applicant also on the basis of the observations made in the order dated 18.01.2020. Mr.Munshaw took us to the order dated 18.01.2020 which is not annexed with the application by the applicant. However the same is a part of affidavit-in- reply filed by the Respondent No.2 wherein at Annexure-J, Page:69, the Respondent No.2 has annexed the order dated 18.01.2020. In the order dated 18.01.2020, learned Court of Commissioner while noting the contention that the order passed in respect of Mr.Dhiren Patel, who was directed to be transferred earlier, was cancelled vide order dated 12.12.2019, the order on the basis of which the order of transfer of the applicant was based no more exist now and accordingly the applicant cannot claim that differential treatment is given to her. With this observation, the Court of Commissioner passed an order that in view of the cancellation of earlier transfer order of Mr.Dhiren Patel vide order dated 12.12.2019, no case of differential treatment to the applicant is meted out and issued further direction that keeping in mind the circulars issued by the Education Department, the applicant's request for transfer may be considered in accordance with law. Mr.Munshaw submitted that since vide order dated 18.01.2020, the learned Court of Commissioner directed Page 8 of 11 Downloaded on : Tue Jan 11 23:34:59 IST 2022 C/MCA/445/2020 CAV JUDGMENT the authorities to act in accordance with law keeping in mind the circulars of Education Department in respect of transfer, the Respondent No.2 has passed the order dated 20.04.2020. The Respondent No.2 has also explained the reason as to why the request of the applicant for transfer could not be decided within stipulated period of six weeks as directed by this Court and has tendered unconditional apology which can be seen from para:9 of the affidavit-in- reply filed by Respondent No.2. Mr.Munshaw, learned advocate for the respondent submitted that present application may be dismissed as no case for contempt is made out.
8. After hearing the rival contentions and on perusal of the record, we have noticed the fact that it is true that while passing the order dated 22.01.2020 in Special Civil Application No.1368 of 2020, the learned Single Judge directed the respondents to consider the case of the applicant positively within a period of six weeks however the learned Single Judge also issued directions to consider the case of the applicant in accordance with observation made by the Court of Commissioner in the order dated 18.01.2020. As can be seen from the affidavit-in-reply filed by Respondent No.2 whereby the respondents have tried to justify their action by citing various provisions of Government Resolutions issued in respect of policy for transfer of Vidhya Sahayak / Assistant Primary School Teacher/ Primary School Teacher. However, since the justifiability or the reason behind any action of the Page 9 of 11 Downloaded on : Tue Jan 11 23:34:59 IST 2022 C/MCA/445/2020 CAV JUDGMENT respondents would be outside of the scope of this application, as limited scope of this application would be to examine whether the act of respondents more particularly respondent No.2 could be said to be contemptuous or can it be said to be willful disobedience of the order passed this Court or not and, therefore, at this juncture we think it fit and appropriate not to go into the aspect of whether the act of not transferring the applicant by accepting her request can be said to be proper or not. As far as present applicant is concerned, we have noticed the fact that the Respondent No.2 has passed order dated 20.04.2020 whereby reference of the order dated 18.01.2020 passed by the learned Court of Commissioner is made and, therefore, it cannot be said that respondents have deliberately disobeyed or flouted direction issued by this Court. If the applicant is aggrieved by the aforesaid order dated 20.04.2020, it is needless to say that the applicant may take appropriate legal recourse and avail the remedy available to her. Merely because the applicant is not transferred at a place of her choice or a place nearer to her residence, the jurisdiction of this Court under the Contempt of Court Act cannot be invoked.
9. In view of the above, as it emerges from the record, there is not contempt whatsoever of the order dated 22.01.2020 passed by this Court in Special Civil Application No.1368 of 2020 as claimed by the applicant and, therefore, the present application is requires to be dismissed and it is dismissed accordingly. No order as to Page 10 of 11 Downloaded on : Tue Jan 11 23:34:59 IST 2022 C/MCA/445/2020 CAV JUDGMENT costs.
(SONIA GOKANI, J) (NIRZAR S. DESAI,J) MISHRA AMIT V. Page 11 of 11 Downloaded on : Tue Jan 11 23:34:59 IST 2022