Vankar Jyotikaben Danabhai vs State Of Gujarat
2021 Latest Caselaw 12720 Guj

    C/SCA/13219/2020                              JUDGMENT DATED: 27/08/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 13219 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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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 ?

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                       VANKAR JYOTIKABEN DANABHAI
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR BHAVESH J PATEL(6801) for the Petitioner(s) No. 1,2
MR DHAWAN JAYSWAL,AGP for the Respondent(s) No. 1,2
MR HS MUNSHAW(495) for the Respondent(s) No. 3,4
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 27/08/2021

                            ORAL JUDGMENT

Heard learned advocate Mr.Bhavesh Patel for the petitioners, learned Assistant Government Pleader Mr.Dhawan Jayswal for the respondent Nos.1 and 2 and learned advocate Mr.H.S.Munshaw for the respondent Nos.3 and 4.

C/SCA/13219/2020 JUDGMENT DATED: 27/08/2021

1. Rule, returnable forthwith. Learned Assistant Government Pleader Mr.Dhawan Jayswal waives service of notice of rule for respondent Nos.1 and 2 and learned advocate Mr.H.S.Munshaw waives service of notice of rule for respondent Nos.3 and 4.

2. By this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs:

"(A) YOUR LORDSHIPS be pleased to admit and allow the present petition. (B) YOUR LORDSHIPS may be pleased to issue a writ of mandamus, or a writ of mandamus and/or a writ in the nature of mandamus and/or any other appropriate writ, order or direction be iasued to quash and set aside the order dated 30/06/2020 issued by the District Primary Education Officer, Banaskantha i.e. respondent no.3 (Annexure-E) in the interest of justice.

(C) YOUR LORDSHIPS may be pleased to issue a writ of mandamus, or a writ in the nature of certiorari, or any other appropriate writ, order or direction, to direct the respondent authorities to consider the applications preferred by the petitioners for a transfer in exchange by allowing them to participate in District transfer camps to be held on 10/07/2020 and in future at Banaskantha and Anand districts respectively in the interest of justice.

(D) YOUR LORDSHIPS may be pleased declare that a place where husband resides also falls within the meaning of "matrimonial home" for a married women for the purpose of transfer to a place near "Matrimonial home" in the interest of justice.

(E) YOUR LORDSHIPS may he pleased direct the respondent authority no.3 and 4 to consider the application made by the petitioners for a transfer in exchange in the interest of justice.

(F) Pending admission, hearing and final disposal of this petition, YOUR LORDSHIPS may be pleased to direct the respondent authority to consider the application and allow them to participate in District teacher transfer camp for exchange.

(G) YOUR LORDSHIPS may be pleased to grant such other and further reliefs as deemed fit in the interest of Justice;"

C/SCA/13219/2020 JUDGMENT DATED: 27/08/2021

3.1. The petitioners have applied for mutual transfer with the respondent authorities. The petitioner No.1 is working as a Vidya Sahayak at Surana Primary School at Surana, Taluka: Diyodar, District:

Banaskantha. The matrimonial residence of the petitioner No.1 is at Anand District.

3.2. The petitioner No.2 is working as Vidya Sahayak at District: Anand in Navapura (Bhatpura) Primary School, Navapura-Bhatpura, Taluka:Umreth, District:Anand. The petitioner No.2 is resident of post Bhardva, Taluka: Suigam, District: Banaskantha.

3.3. Therefore the petitioner Nos.1 and 2 applied for mutual transfer as the petitioner No.1 is desirous of staying with her husband at Anand whereas, petitioner No.2 is desirous of being shifted to his native place at Banaskantha.

3.4. The respondent authority however rejected the request of the petitioners for mutual transfer on the ground that as per the Government Resolution dated 05.07.2014, inter district transfer is not permissible when a request for mutual transfer is made. The respondent authority further rejected the request of the petitioners for mutual transfer on the ground that in the service book of petitioner No.2, the native place of the petitioner No.2 is mentioned as Village:Khankhanpur, Taluka:Anand, District:Kheda and unless and until higher authority grants permission to make change in the service book, the

C/SCA/13219/2020 JUDGMENT DATED: 27/08/2021

respondent authority is bound to consider the native place of the petitioner No.2 as that of Anand and not of Banaskantha.

3.5. The petitioners therefore being aggrieved by the order dated 17.06.2020 passed by the respondent No.3-District Primary Education Officer preferred Appeal before the respondent No.2 which was also rejected by order dated 30th June, 2020.

4.1. Learned advocate Mr.Patel submitted that it is not in dispute that the husband of the petitioner is serving at Anand. Learned advocate Mr.Patel also referred to the APL-1 Card produced at page No.32 to show that the respondent No.2 is also resident of District:Banaskantha.

4.2. It was submitted that considering the request made by the petitioners, the respondent authorities ought to have passed the transfer order of the petitioners on mutual ground as both the petitioners are belonging to the same department and serving as Vidhya Sahayak.

4.3.    It     was     further       submitted        that      the      reliance
placed       by       the      respondent          authorities            on        the
Government           Resolution      dated         05.07.2014         cannot          be

applied in the facts of the case as the petitioner No.1 has made request on the basis that her husband is serving at Anand and therefore her case would fall under the category of couple transfer whereas the

C/SCA/13219/2020 JUDGMENT DATED: 27/08/2021

respondent No.2 has prayed for transfer on mutual basis which can be considered by the respondent authority in inter district transfer camps.

5. On the other hand learned advocate Mr.Munshaw submitted that there is no provision for inter district mutual transfer and as both the employees pray for mutual transfer from one district to another the respondent authority has rightly passed the impugned order. In support of such submission he relied upon the following averments made in the affidavit-in-reply, which read as under :

"2. The Respondent No.4 humbly submits that the Government of Gujarat through Education Department has framed a policy for transfer of Vidya Sahayaks and Assistant Teachers of the State of Gujarat. It is stated that the said policy permits inter-district transfer on the basis of mutual request also and a copy of the Resolution dated 23.05.2012 is annexed herewith and marked as Annexure-A. The Respondent No.4 craves leave to rely upon Chapter 'CH' of the resolution relating to mutual inter-district transfer. The Respondent No.4 submits that subsequently another resolution dated 05.07.2014 is issued by the Respondent No.1 in this regard and a copy thereof is annexed herewith and marked as Annexure-B. From a kind perusal thereof, it would be clear that the Clause 5 provides that such inter-district transfer on mutual request is permitted only to a native district in case of male Teachers and to anative district or in-law's district in case of female Teachers.

3. The Respondent No.4 most respectfully submits that one Mr. Budhabhai Galabhai Chauhan is an Assistant Teacher of Anand District Panchayat by virtue of his joining service on 18.01.1993 and he belongs to Village Khankhanpur, Taluka Umreth, District Anand. It is submitted that entry in this regard is passed in Service Book of Mr.Chauhan. The Respondent No.4 submits that one Mrs. Jyotikaben Danabhai Vankar who is rendering services as Assistant Teacher in Banaskantha District Panchayat and native of Village Kantha, Post Samna, Taluka Lunawada, District Panchmahals as per an entry in Service Book requested for inter-district transfer to Anand District Panchayat vice present Budhabhai Galabhai Chauhan. The Respondent No.4 submits that Mr.Chauhan forwarded his application on 31.03.2020 to Respondent No.4 and the same was forwarded after scrutiny to the Respondent No.3 i.e. District Primary Education Officer, Banaskantha District Panchayat on 17.06.2020. Simultaneously, the Petitioner as an employee of Banaskantha District Panchayat addressed an application to her appointing authority at Palanpur, but the same is not forwarded so far to the Respondent No.4.

4. The Respondent No.4 submits that the application of Mr.Budhabhai Galabhai Chauhan forwarded by it to the Respondent No.3 was returned on 30.06.2020 by the

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Respondent No.3 on a ground that the same was not in consonance with the rules as reported by Taluka Primary Educaticn Officer, Taluka Deodar, District Banaskantha on 17.06.2020 and a copy of letter dated 30.06.2020 returning the proposal to Respondent No.4 qua Mr.Chauhan is annexed herewith and marked as Annexure-C.

5. In view of this action of Respondent No.3, it is crystal clear that an inter- district transfer on mutual basis is not acceptable as the Respondent No.3 turned down the application of Mr.Chauhan. It is submitted that therefore, it is but natural that the application of present Petitioner for inter-district transfer to Anand District Panchayat on a mutual basis vice Mr.Chauhan cannot be accepted. It is submitted that such request and insistence for inter district transfer is contrary to the policy of the State of Gujarat framed through Resolutions dated 23.05.2012 and 05.07.2014. The Respondent No.4, therefore, most respectfully prays that the Hon'ble Court be kind enough not to grant any interim relief and reject present Special Civil Application in limine with cost in the interest of justice."

6.       Having          heard      the       learned         advocates             for        the
respective              parties        and      having         gone         through            the

materials on record, it appears that the respondent authorities have misinterpreted the Government Resolution dated 5th July, 2014 with regard to mutual transfer which reads as under :

"Under clause(V): Both the teachers claiming transfer in Exchange must make a demand for native Taluka/ District and for Female teacher a demand should be a Taluka/ District where there is her Matrimonial home/Parental home. Except as aforesaid no transfer on the demand of Exchange will take place. The transfers in Exchange will be done only in cases having proper proof and compelling reason."

7. In view of the above clear provision of Clause 5 which has amended clause 5 of the Government Resolution dated 23.05.2012, in the facts of the case petitioner No.1 has made a request of transfer to her matrimonial place of residence of her husband at Anand and petitioner No.2 has made a request for transfer at his native place at District Banaskantha. Moreover, the contention of the respondent authority that what is stated in the service book is only required to be looked at is not tenable and the

C/SCA/13219/2020 JUDGMENT DATED: 27/08/2021

respondent authority is required to consider the documents produced by the petitioner No.2 with regard to his native place. In view of the documents produced by the petitioner No.2, the respondent authorities are required to take appropriate action to correct the service book and petitioner No.2 cannot be denied the benefit of mutual transfer provisions only on the ground that in service book his native place is wrongly mentioned.

8. In view of the above facts and circumstances, the petition is allowed. The respondents are directed to consider the case of mutual transfer of the petitioners in the next camp which may be held and priority be given to the petitioners accordingly considering the facts of this case. Rule is made absolute to the aforesaid extent.

(BHARGAV D. KARIA, J) PALAK