Gujarat High Court

Parmar Kiranbhai Ramabhai vs State Of Gujarat on 7 April, 2022

Bench: Biren Vaishnav

    C/SCA/18458/2019                                 JUDGMENT DATED: 07/04/2022



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 18458 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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                            PARMAR KIRANBHAI RAMABHAI
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MS MAMTA R VYAS(994) for the Petitioner(s) No. 1
MR.KRUTIK PARIKH, AGP for the Respondent(s) No. 1,2,3
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 : 07/04/2022

                                   ORAL JUDGMENT

1. RULE returnable forthwith. Mr.Krutik Parikh

learned AGP waives service of notice of Rule on

behalf of the respondent nos.1 and 2 and

Mr.M.P.Prajapati learned advocate waives service of

notice of Rule on behalf of the respondent no.3.

Though served, nobody appears for respondent

C/SCA/18458/2019 JUDGMENT DATED: 07/04/2022

nos.4 and 5.

2. With the consent of learned advocates for the

respective parties, the petition is taken up for final

hearing.

3. By way of this petition under Article 226 of the

Constitution of India, the petitioner has challenged

the order of transfer from Sutadiyapura,

Taluka:Vadnagar to Sardarpura Primary School,

Taluka:Satlasana. It is the case of the petitioner that

the transfer was in violation of the policy dated

28.04.2016. The policy required that if a transfer is

to be made on administrative exigencies or on

account of complaints against the teacher, an

approval post the transfer has to be sent by District

Primary Education Officer to Director of Primary

Education within 10 days and thereafter the Director

has to grant or approve within 35 days. If the time

schedule as prescribed in the resolution is not

followed after the order of transfer, the same would

stand automatically cancelled.

C/SCA/18458/2019 JUDGMENT DATED: 07/04/2022

4. Mr.M.P.Prajapati learned counsel for the respondent

no.3 would justify the order of transfer of the

petitioner on the ground that the transfer was

necessary in view of the complaints received from

the people of the village against the petitioner. The

petitioner was found negligent in his duties and was

not conducting classes properly. He was using

uncivilized language in front of the students.

Considering the complaints, it was necessary for the

school management committee to transfer the

petitioner from the school. He would draw the

attention of the Court to the affidavit in reply filed by

the District Primary Education Officer. Drawing the

attention of the Court to the several complaints

which have been referred to in the reply, it was the

case of the learned counsel for the District Primary

Education Officer that after the order was passed,

the District Primary Education Officer wrote a letter

to the Director of Primary Education seeking

approval of the transfer order which was accorded

on 27.11.2019. There was some justifiable

C/SCA/18458/2019 JUDGMENT DATED: 07/04/2022

administrative delay and as a result of which, no

right can accrue to the petitioner for having the

order cancelled.

5. Ms.Mamta Vyas learned counsel for the petitioner

would draw support from the order passed by this

Court in Special Civil Application No.9571 of 2017

dated 24.06.2021, in which, the Court had the

opportunity to consider the resolution dated

28.04.2016. Considering the effect of the time limits

stipulated in the Government Resolution, the Court

quashed the order of transfer on the ground that it

otherwise stood automatically cancelled for non-

compliance of the resolution dated 28.04.2016.

6. The order of this Court as referred to herein above,

reads as under:

"Heard learned advocate Mr.Gaurav Chudasama for the petitioner, learned Assistant Government Pleader Mr.K.M.Antani for the respondents-State and learned advocate Ms.Archita Prajapati for learned advocate Mr.M.P.Prajapati for the respondent No.3 through video conference.

1. By this petition under Article 226 of the Constitution of India, the petitioner has prayed

C/SCA/18458/2019 JUDGMENT DATED: 07/04/2022

for the following reliefs :

"A. This petition be admitted and allowed.

B. Your Lordships be pleased to issue a writ of Mandamus or any other appropriate writ, order or direction to quash and set aside order Dt.14-03-2017 passed by the respondent no.3.

C. Pending hearing and final disposal of this Petition the order Dt.14-03-2017 and Order Dt.15-03-2017 may be stayed in the interest of justice.

D. Any other relief that may be deemed just, proper and necessary may also be kindly granted."

2. At the outset learned advocate Mr.Gaurav Chudasama submitted that without going into the merits whether the impugned administrative transfer order is passed is legal or not there is no compliance of the Government Resolution dated 28.04.2016 issued by the Education Department of the State of Gujarat which has modified the earlier Government Resolution dated 23.05.2012 to the effect that if any administrative transfer order is passed by the District Education Officer then within 10 days thereof, a proposal is required to be made to the Director, Primary Education who has to sanction such proposal within 35 days failing which, the administrative transfer order passed by the District Education Officer could be cancelled automatically.

3. In view of the above submission, query was put to the learned advocate for the respondent No.3 to point out from the records as to whether any proposal is made by the respondent No.3-District Education Officer to the Director, Primary Education within 10 days

C/SCA/18458/2019 JUDGMENT DATED: 07/04/2022

from passing of the impugned administrative transfer order dated 14th March, 2017 or not. However, learned advocate for the respondent No.3 was not able to point from the record that such proposal is made by the District Education Officer within 10 days from the date of passing of the impugned administrative transfer order as required by Government Resolution dated 28.04.2016.

4. In that view of the matter, the impugned administrative order dated 14th March, 2017 automatically stands cancelled in view of the Government Resolution dated 28.04.2016.

5. This Court (Coram: Hon'ble Mr.Justice S.G.Shah as His Lordships was then) while issuing the notice on 05.05.2017 passed the following order:

"NOTICE returnable on 1.8.2017. Learned AGP waives service of notice of Rule on behalf of the respondent - State.

Interim Relief is granted in terms of Paragraph 15(C) till then.

Irrespective of filing of affidavit in reply as per their desire, it would be appropriate to direct the respondent/s to disclose on oath on returnable date about correctness and press cutting based upon which such transfer order is passed.

Direct Service is permitted upon rest of the respondent/s."

6. The petitioner is already reinstated at the original place and she is working at the original place since then as the order passed by this Court is complied with.

7. In view of the above facts emerging from the

C/SCA/18458/2019 JUDGMENT DATED: 07/04/2022

record, as the impugned administrative transfer order stands automatically cancelled for non-compliance of the Government Resolution dated 28.04.2016, the petition does not survive and is accordingly disposed of. Notice is discharged."

7. Keeping in view the aforesaid order passed by this

Court, the petition is allowed. The order dated

14.08.2019 transferring the petitioner from

Sutadiyapura Primary School to Sardarpura Primary

School shall be treated to have been cancelled in

view of the breach of the time frame stipulated in

the resolution dated 28.04.2016. As the transfer

order stands cancelled, the respondent no.3 shall

make efforts to see that the petitioner is

accommodated at his original place of transfer or at

a local pay center of nearby village. It is clarified

that in case there are complaints received against