Patel Mittalben Narsinhbhai vs State Of Gujarat
2022 Latest Caselaw 4017 Guj

      C/SCA/8887/2019                             JUDGMENT DATED: 06/04/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 8887 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BIREN VAISHNAV

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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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                        PATEL MITTALBEN NARSINHBHAI
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR GAURAV CHUDASAMA(5660) for the Petitioner(s) No. 1
MR KRUTIK PARIKH, ASST GOVERNMENT PLEADER for the
Respondent(s) No. 1,2
MR MP PRAJAPATI(677) for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 4,5
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 06/04/2022

                              ORAL JUDGMENT

1. Rule returnable forthwith. Mr. Krutik Parikh, learned AGP waives service of notice of rule on behalf of respondent State. Ms. Archita Prajapati, learned advocate waives service of notice of rule on behalf of

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respondent no. 3. Though served none appears for respondents no. 4 and 5 - private respondents.

2. Heard learned advocates appearing for the respective parties.

3. The prayer of the petitioner is that a direction be issued to respondent no. 3 to give inter-district transfer order on the basis of seniority list dated 31.12.2015 by cancelling the transfer order dated 11.02.2019 of respondents no. 4 and 5.

4. The petitioner was appointed as Vidhyasahayak in Primary Section on 30.11.2008 by the District Primary Education Officer, Kachchh-Bhuj. On completion of five years of service, the petitioner made an application for inter-district transfer on 07.12.2014. The transfer application was made for transfer from Kachchh to Mehsana as the petitioner's husband was working at Mehsana. On 02.05.2015, the petitioner opted for upper primary section with the subject of Social Science. A seniority list of the year 2015 for the purposes of inter-district transfer was prepared on 19.10.2016, the petitioner was placed at Sr. No. 3.

5. Mr. Gaurav Chudasma, learned advocate appearing for the petitioner would submit that the name of the petitioner for the purposes of consideration of the inter-district transfer on the basis of the spouse working in the relevant district in the seniority list was at Sr. No. 3. Despite this being the position, by order of transfer dated 11.02.2019, the respondents no. 4 and 5 who were junior to the petitioner were given the benefit of transfer based on the policy of their spouses working in Mehsana overlooking the case of the petitioner. In support of transfer orders being wrong, Mr. Chudasma relied on the order passed by this court on 01.02.2018 in Special Civil Application No. 18313 of 2016.

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6. Ms. Archita Prajapati, learned advocate appearing for respondent no. 3 would submit based on the table at page 101 annexed to the affidavit-in-reply filed by the District Primary Education Officer, Mehsana that if the dates are considered, both the respondents no. 4 and 5 had opted for upper primary section in 2014 whereas the petitioner had opted for the upper primary section in the subject of Social Science later in the year 2015. Even therefore keeping the date of the applications of inter-district transfer being in the year 2014, the fact that the respondents had opted earlier for upper primary section, their applications were rightly considered prior to that of the petitioner.

6.1 Ms. Prajapati, learned advocate would dispute the submission that the applications of 2014 have to be considered in light of their date of initial appointments and submit that admittedly both the respondents no. 4 and 5 were appointed on 05.12.2008 as Vidhyasahayak whereas the petitioner was appointed on 01.12.2008. Emphasis by Ms. Prajapati was on reading the policy of 23.05.2012. By relying on clause 10 thereof, she would submit that the decision rendered by this court in Special Civil Application No. 18313 of 2016 on 01.02.2018 was not in consonance with the policy of 23.05.2012.

7. Mr. Krutik Parikh, learned AGP would take the court through the relevant clauses of the policy dated 23.05.2012 and submit that the policy for the purposes of inter-district transfer in case of a spouse serving in the other district has to be independently considered without the date of option in upper primary section. Clause 11 was relied upon which indicates that for the purposes of inter-district transfer, the date of the application which came at the first point of time has to be considered.

8. The controversy which arises for a decision in this petition is no longer in the matter of doubt in view of unequivocal finding of this court

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in the case of Special Civil Application No. 18313 of 2016 wherein the court considered the policy dated 23.05.2012. This court in paras 6 and 7 has held as under:

"6. It is an admitted fact that application was made by the petitioner on 19th December, 2013. The reason that the petitioner was shifted to upper primary section is of no relevant or consequence in so far as treating her application for inter-district transfer in terms of its seniority. When the application was made, as stated above, on 19th December, 2013, it is with reference to that the petitioner's claim would be considered. The event that the primary section came to be divided into lower primary and upper primary was a fortuitous circumstance not connected with the policy provisions in Resolution dated 23rd May, 2012. It has nothing to do with the claim of the applicants who want interdistrict transfer. The fact that order was passed shifting the petitioner to upper primary section cannot wipe out the original claim of the petitioner for inter-district transfer which was as per his application dated 19th December, 2013 and liable to be treated accordingly.

6.1 The policy of inter-district transfer would go topsy turvy if the basic date in the first application of the aspiring candidate is not applied and is not adhered to. It defies rationale that the respondent authorities disregarded the date of application, that is 19th December, 2013, but embraced the date of 06th June, 2016 for counting the seniority of the petitioner for inter-district transfer, though that date had nothing to do with the aspect of interdistrict transfer. Nor such justification can be seen to be stemming from the conditions of Resolution dated 23rd May, 2012.

6.2 If inter-district transfer is allowed to be operated with such interpretation, for every irrelevant or non-germane reason, the seniority would be changed and the purpose of inter-district transfer would be frustrated and the application of policy may go haywire. Therefore in case of the petitioner, her application dated 19th December, 2013 ought to be treated as basic date with reference to which her seniority and right to be transferred to the school within Mehsana district has to be considered. Nonconsideration of the claim of the petitioner with reference to the said date would not only not find support from the policy resolution, but the same is arbitrary, unreasonable and irrational, taking the toll of tenets of Article 14 of the Constitution.

7. In view of above, the respondents are directed to consider the application of the petitioner for her inter-district transfer to a school situated within Mehsana district with reference to and on the basis of her application dated 19th December, 2013, treating the said date of application to be the basedate. In the event, vacancy is not available in the school within Mehsana district, as soon as vacancy arises and

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available, case of the petitioner shall be considered by transferring her. It is directed that the respondent authority shall allow the petitioner to participate in the inter-district transfer camp for the purpose, which may be scheduled to be held within two months. However if the transfer camp is not held and the vacancy is arising within two months, the petitioner shall be given benefit of transfer on the basis of her seniority determined as above even without participation in the transfer camp.

This petition is allowed in the aforesaid terms.

Direct service is permitted."

8.1 It will be in the fitness of things to observe that a co-ordinate bench of this court in context of the seniority impugned in this petition and the communication dated 19.12.2016 opined that the order of shifting the petitioner to the upper primary section cannot wipe out the original claim of the petitioner for inter-district transfer. This, in the opinion of the court, would render the policy of inter-district topsy turvy and defies rationale. The court opined that the date of option had nothing to do with the aspect of inter-district transfer nor such justification can be seen to be stemming from the condition of the resolution dated 23.05.2015.

8.2 The District Primary Education Officer - party in Special Civil Application No. 18313 of 2016 carried the matter for reconsideration by filing a review application. The contentions raised today by Ms. Prajapati were also raised by the District Primary Education Officer as is evident in para 4 of the order passed in the review application. Reiterating and affirming the stand of the order in review, the application was dismissed. Paras 4 to 5.3 of the order read as under:

"4. Seeking review of the aforesaid order, learned advocate for the applicant raised various contentions. First was that the transfer camp is held on a fixed date, therefore the applicant has to depend upon the dates as may be determined by the Director of Primary Education, Gandhinagar, for holding a transfer camp. The next submission which was harped was that the application of the petitioner was not dated 19th December, 2013 but was required to be treated as

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of dated 07th February, 2014 and on that basis, claim of the original petitioner was required to be considered. It was next submitted that when the petitioner originally applied for her transfer to another school, she was in the primary school, which later become upper primary school due to change of policy and that the said aspect was also required to be taken into consideration. It was further submitted that in the subject of Social Science in which the petitioner was a Teacher, there were other candidates who also had requested for transfer.

5. Upon an attentive consideration of the order under review, it would be seen that all the aforesaid contentions were raised in course of hearing and they were dealt with by the Court in the order. As far as the aspect of date of application of the petitioner is concerned, it was observed in paragraph 6 it was an admitted fact that the petitioner made application on 19th December, 2013.

5.1 The said aspect as well as the aspect that the petitioner was in the primary section when the application was made was considered by the Court with the following reasons.

"6. It is an admitted fact that application was made by the petitioner on 19th December, 2013. The reason that the petitioner was shifted to upper primary section is of no relevant or consequence in so far as treating her application for inter-district transfer in terms of its seniority. When the application was made, as stated above, on 19th December, 2013, it is with reference to that the petitioner's claim would be considered. The event that the primary section came to be divided into lower primary and upper primary was a fortuitous circumstance not connected with the policy provisions in Resolution dated 23rd May, 2012. It has nothing to do with the claim of the applicants who want inter- district transfer. The fact that order was passed shifting the petitioner to upper primary section cannot wipe out the original claim of the petitioner for inter- district transfer which was as per his application dated 19th December, 2013 and liable to be treated accordingly."

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5.2 About operation and implementation of the policy of inter-district transfer, it was inter alia observed that it defies rationale that the respondent authorities has disregarded the date of application which was 19th December, 2013. This part was considered in paragraph 6.1 as under.

"6.1 The policy of inter-district transfer would go topsy turvy if the basic date in the first application of the aspiring candidate is not applied and is not adhered to. It defies rationale that the respondent authorities disregarded the date of application, that is 19th December, 2013, but embraced the date of 06th June, 2016 for counting the seniority of the petitioner for inter-district transfer, though that date had nothing to do with the aspect of inter-district transfer. Nor such justification can be seen to be stemming from the conditions of Resolution dated 23rd May, 2012."

5.3 Thus, all the contentions raised here were raised in course of the hearing of the main petition and were dealt with and answered by the Court. It is a well settled principle that the review is not rehearing of the main matter. Review applicant cannot be allowed to urge the same grounds which were canvassed in the main petition and which were considered to culminate into the order. Nor the review is maintainable on the basis of new plea or a spacious ground that particular argument or aspect was not considered."

8.3 Accordingly, since the issue is concluded and it is not open for this court to dissect the decision of the court where the policy dated 23.05.2012 in light of the submission made by Ms. Prajapati, learned counsel for the respondent no. 3 are interpreted, the petition needs to be allowed.

9. Accordingly the order dated 11.02.2019 is quashed and set aside. The petitioner shall be given the benefit of inter-district transfer based on her initial date of appointment in the cadre of Vidhyasahayak and not based on her seniority of the application of inter-district transfer. The exercise shall be completed within a period of eight weeks from the

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receipt of the writ of the order of this court. Petition is accordingly allowed. Rule is made absolute. Direct service is permitted.

(BIREN VAISHNAV, J) DIVYA