Patel Maheshkumar Narayanbhai vs State Of Gujarat
2022 Latest Caselaw 6823 Guj

     C/SCA/3256/2019                               JUDGMENT DATED: 01/08/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 3256 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 MAHESHKUMAR NARAYANBHAI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MS VIDHI J BHATT(6155) for the Petitioner(s) No. 1
MR.UTKARSH SHARMA, AGP for the Respondent(s) No. 1,2
MS.NIYATI VAISHNAV, ADVOCATE for MR PINAKIN M RAVAL(2495) for
the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 4
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                               Date : 01/08/2022

                              ORAL JUDGMENT

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

C/SCA/3256/2019 JUDGMENT DATED: 01/08/2022

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 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

C/SCA/3256/2019 JUDGMENT DATED: 01/08/2022

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

C/SCA/3256/2019 JUDGMENT DATED: 01/08/2022

transfer in the surplus teachers' transfer camps

are to be carried out. 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

C/SCA/3256/2019 JUDGMENT DATED: 01/08/2022

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 around 200 schools in District

Gandhinagar, out of which, 49 schools were

found with wrong calculation. It is the case of

C/SCA/3256/2019 JUDGMENT DATED: 01/08/2022

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

C/SCA/3256/2019 JUDGMENT DATED: 01/08/2022

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 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.

C/SCA/3256/2019 JUDGMENT DATED: 01/08/2022

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

C/SCA/3256/2019 JUDGMENT DATED: 01/08/2022

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 sanctioned set up as on 31.08.2018.

13. Petition is disposed of in the above terms.

(BIREN VAISHNAV, J) ANKIT SHAH