Gujarat High Court

Patel Minakumari Jayantilal vs State Of Gujarat on 1 August, 2022

Bench: Biren Vaishnav

     C/SCA/3484/2019                               JUDGMENT DATED: 01/08/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 3484 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 MINAKUMARI JAYANTILAL & 9 other(s)
                                 Versus
                       STATE OF GUJARAT & 3 other(s)
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Appearance:
MS VIDHI J BHATT(6155) for the Petitioner(s) No. 1,10,2,3,4,5,6,7,8,9
DS AFF.NOT FILED (N) for the Respondent(s) No. 4
MR.SOAHAM JOSHI, AGP for the Respondent(s) No. 1,2
MR MP PRAJAPATI(677) for the Respondent(s) No. 3
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 01/08/2022

                             ORAL JUDGMENT

1. Heard Ms.Vidhi Bhatt learned advocate for the

petitioners, Mr.Soaham Joshi learned AGP for

respondent nos.1 and 2 and Mr.M.P.Prajapati

learned advocate for respondent no.3. Though

served, nobody appears for respondent no.4.

C/SCA/3484/2019 JUDGMENT DATED: 01/08/2022

2. This petition is pressed only for petitioner nos.4,

5, 6, 7 and 10.

3. While issuing notice on 18.02.2019, the Court

passed the following order:

           "    Upon     mention     being    made  by
           learned    advocate Ms.Vidhi Bhatt for the

petitioners, the petition was allowed to be circulated today. Resultantly, the Board was prepared and the matter was placed before the Court in the second session.

It was submitted while mentioning urgency that the camp is going to be held on 19.02.2019. The petition was accordingly taken up in the second session. Learned advocate for the petitioner stated that in Special Civil Application No.3255 of 2019 where the issues are identical, this Court has passed order. In the above view, having heard learned advocate for the petitioners, Notice returnable on 01.03.2019. Without prejudice to the rights and contentions of either side, if any camp is to be held by the authority, the petitioners may participate therein. However, the participation shall be subject to further orders which may be passed by this Court. Direct service is permitted, today."

4. Mr.Prajapati learned counsel appearing for the

respondent no.3 would submit that after the

C/SCA/3484/2019 JUDGMENT DATED: 01/08/2022

issuance of notice in this petition, the petitioners

were transferred on 19.12.2019 pursuant to the

camps held on that day and therefore the present

petition need not be entertained. He would rely

on the order passed by this Court on 24.07.2018

passed in Special Civil Application No.9675 of

2015.

5. In this petition too, the issue of these orders of

transfer is on the basis of working out of the

sanctioned set up as on 31.08.2018 in the

respective schools.

6. Today, in a similar matter being Special Civil

Application No.3256 of 2019, this Court has

passed the following order:

1. RULE returnable forthwith. Mr.Utkarsh Sharma learned AGP waives service of notice of Rule on behalf of the respondent Nos.1 and 2 and Ms.Niyati Vaishnav learned advocate for Mr.Pinakin Raval learned advocate waives service of notice of Rule on behalf of the respondent No.3. Though served, nobody appears for the respondent

C/SCA/3484/2019 JUDGMENT DATED: 01/08/2022

no.4.

2. With the consent of learned advocates for the respective parties, the petition is taken up for final hearing.

3. Challenge in this petition under Article 226 of the Constitution of India is to an order dated 23.02.2019 transferring the petitioner from Chandrala Primary School.

4. Ms.Vidhi Bhatt learned counsel for the petitioner would submit that the petitioner was appointed as Vidhya Sahayak on fixed pay basis by the District Primary Education Officer. The petitioner was thereafter absorbed on a regular set up on completion of five years in the year 2009. As a result of the bringing in of the Right of Children to Free and Compulsory Education Act, 2009 ('RTE Act' for short), there are two categories viz. Lower Primary Division (Standards 1 to 5) and Upper Primary Division (Standards 6 to 8). Under Sections 19 and 25 of the RTE Act, the school was required to fill certain norms in standards as per the schedule in the Act.

5. Ms.Bhatt would rely on the resolution of the State dated 03.06.2010 and submit that when the strength of the students was between 61 to 90, a school ought to have three teachers. When read with the Government Resolution dated 23.05.2012, which pertains to transfer of primary teachers, for the purposes of carrying out the exercise of transfers, the set up each year as on 31st August has to be seen and accordingly transfer in the surplus teachers' transfer camps are to be carried out.

C/SCA/3484/2019 JUDGMENT DATED: 01/08/2022

Relying on an extract of the school register of Chandrala, she would submit that in August 2018, the student's strength of the school was 61 i.e. more than 1 student for the purposes of declaring the petitioner as surplus and when this is in light of the resolution dated 03.06.2010, the petitioner was the 3rd teacher in the school and therefore could not have been declared as surplus. She would also rely on an extract of the register of the Chandrala School produced together with the amendment which indicated the student's strength, respectively as on 31.08.2018, 30.09.2018, 31.10.2018 etc. Even as per this extract, the total strength of the students on 31.10.2018 was 62. This therefore are pointers to suggest that there was no reason why the petitioners could not have been transferred out of Chandrala Primary School when admittedly the students' strength was not at any point of time below 60 as required under the norms.

6. Ms.Bhatt would submit that pursuant to a communication dated 09.10.2018, a fresh inspection was carried out in several schools which too, indicated that Chandrala School has student strength of 61. The calculation therefore cannot be faulted so as to declare the petitioner as surplus and moved him out of Chandrala Primary School.

7. Ms.Vaishnav learned advocate for Mr.Pinakin Raval learned advocate for respondent no.3 would submit that in fact, on receiving instruction by the office order dated 09.10.2018, few surprise inspection visits were carried out by the authorities in

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around 200 schools in District Gandhinagar, out of which, 49 schools were found with wrong calculation. It is the case of the deponent of the reply filed i.e. the District Primary Education Officer, Gandhinagar, that the schools gave wrong calculations just to avoid surplus teachers' situation. She would submit that the inspection was carried out in Chandrala Primary School. In the earlier set up, the Chandrala school showed 61 students, as a result of which, the school was allowed to retain all the three teachers. However, after inspection, based on the Annexure R-III statement on record, it was found that the total number of students in this particular school is 6. Accordingly, as the number of teachers were required to be only two, the petitioner being the junior most teacher, was declared as surplus.

8. Noting all these facts, what is evident is that it is the case of the petitioner that based on the extract of the register for August 2018, the set up of the school as on 31.08.2018 was 61. Even in the statement produced by way of an amendment carried out in the petition, the extract of the register is annexed of the school in question. The set up as on 31.10.2018 when the inspection was carried out was 62. However, what needs to be noted is that this stand is disputed by the District Primary Education Officer in his affidavit in reply to submit that the strength in fact was 60.

9. Ms.Bhatt would submit that during the course of inspection that is carried out, intervening circumstances as to the absence of students is not taken care of which may

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be a result of reduction in the student's strength because as and when the inspection is carried out, the authorities may not take note of the absence of the students in a class or a school which would result in reduction of the students' strength.

10. Based on the statements given by the petitioner as well as the respondent District Primary Education Officer, what appears is that the stand of the petitioner from the registers is that the strength at no stage was below 61 in August 2018 and October 2018, whereas, the District Primary Education Officer would dispute the same.

11. In light of these extracts produced by the respective parties, it is directed that the District Primary Education Officer shall have a fresh look at the students' strength as per the statements given by the petitioner and the respondent and after a fresh examination of the strength in light of the policy dated 23.05.2012 read with the policy resolution dated 03.06.2010, the issue may be reconsidered at the hands of the District Primary Education Officer in context of the validity of the order of transfer in case of the petitioner.

12. Decision afresh be taken by the respondent District Primary Education Officer within a period of six weeks from the date of receipt of copy of this order. It will be open for the respondents to even consider the policy in vogue i.e. 01.04.2022 while taking a fresh look. The issue will be looked into keeping in mind the materials placed by the respective parties on the basis of the

C/SCA/3484/2019 JUDGMENT DATED: 01/08/2022

sanctioned set up as on 31.08.2018.

13. Petition is disposed of in the above terms."

7. The additional ground raised in this petition by

Ms.Bhatt is that the order of transfer is in breach

of order dated 18.02.2018. She would further

submit that the orders of transfer were accepted

under protest.

8. Mr.Prajapati learned counsel appearing for the

District Primary Education Officer has relied on

the affidavit in reply particularly submitting that

a surprise inspection was conducted in 2211

primary schools across Gujarat in order to

ascertain the requirement of teachers against the

students in each school. The object of the

inspection was to ascertain the inconsistency in

the student-teacher ratio and to prepare a report

on the basis of the strength of the students and

to suggest revised establishment of teachers.

After rechecking a report was prepared during

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the inspection which was conducted from

27.09.2018 to 29.09.2018. He would specifically

draw the Court's attention to para 13 of the

affidavit which reads as under:

"13. The Deponent submits that ultimately the Office of DPEO, considering the report submitted by the TPEO and upon verification of the said report has prepared a school-wise data providing the following details:

1. No. of students attending the school on regular basis

2. No. of Teachers required against the actual strength of students

3. Surplus Teachers.

The said report was submitted to the Office of Director, Primary Education on 26/10/2018. The Copy of said report along with Revised set up prepared by the office of DPEO, Mehsana is annexed herewith and marked at Annexure IV.

9. In view of the above, it is directed that the

District Primary Education Officer shall have a

fresh look at the students' strength as per the

statements given by the petitioners and the

respondent and after a fresh examination of the

strength in light of the policy dated 23.05.2012

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read with the policy resolution dated 03.06.2010,

and also policy dated 18.02.2014, the issue may

be reconsidered at the hands of the District

Primary Education Officer in context of the

validity of the order of transfer in cases of the