Patel Linaben Kacharalal vs State Of Gujarat
2022 Latest Caselaw 7261 Guj

    C/SCA/14229/2022                             CAV JUDGMENT DATED: 22/08/2022




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/SPECIAL CIVIL APPLICATION NO.14229 of 2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV
================================================================

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 ?

================================================================ PATEL LINABEN KACHARALAL Versus STATE OF GUJARAT ================================================================ Appearance:

MR PARESHKUMAR B TRIVEDI(9926) for the Petitioner(s) No. 1

MR UTKARSH SHARMA, AGP for the Respondent(s) No. 1,2 ================================================================

CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 22/08/2022

CAV JUDGMENT

1. Rule. Learned AGP Mr. Sharma waives service of

notice of Rule for the respondent Nos.1 & 2 while

Mr. Munshaw, learned advocate waives service of

C/SCA/14229/2022 CAV JUDGMENT DATED: 22/08/2022

notice of Rule for respondent No.3.

2. By way of this Petition under Article 226 of the

Constitution of India, the petitioner has prayed for

the following reliefs:

               "10(b)       to direct the respondents to
               forthwith        relieve        the       petitioner         from

Madhutra Primary School, Tal: Santalpur and allow her to join at Laxmipura (Vamaiya) Primary School, Tal.: Saraswati, in compliance with the order of respondent No.3 dated 2.7.2022 at Annexure - I which is in compliance with the judgment and order of the Hon'ble High Court dated 5.5.2022 passed in SCA No.10739/2021 (Coram: Biren Vaishnav J.) at Annexure - H.

10(c). to allow the petitioner to participate in the Camp that may be held by the respondents as an excess teacher as stated in her transfer order dated 1.12.2020 to Madhutra Primary School, Tal: Santalpur at Annexure - D by

C/SCA/14229/2022 CAV JUDGMENT DATED: 22/08/2022

considering her seniority of Koita Primary School."

3. The facts in brief are as under:

3.1. The petitioner is a Primary Teacher. She

was serving at Vaghel and by an order dated

18.2.2007, she was transferred from Vaghel to Koita

Primary School. On being declared surplus at Koita,

she was transferred to Haripura Primary School

Taluka Randhanpur by an order dated 06.04.2017.

3.2. The order dated 6.4.2017 was cancelled

and she was transferred to Lilapur Primary School,

Taluka Saraswati by an order dated 05.06.2017.

3.3. By order dated 01.12.2020 the petitioner

was transferred from Lilapur Primary School (Koita)

to Madhutra Primary School, Taluka Santalpur. This

was as the petitioner was declared as Surplus and

then she was posted at Madhutra to teach in Std. 6

C/SCA/14229/2022 CAV JUDGMENT DATED: 22/08/2022

to 8. The petitioner did not report at Madhutra.

3.4. By an order dated 05.06.2021, the

petitioner was transferred from Lilapur to

Laxmipura (Vamaaiya) Primary School. This order

stated that the order of transfer was at her request.

3.5. On 23.7.2021, this order of transfer from

Lilapur to Laxmipura was cancelled as according to

the authorities, the order was passed by the DEO

without authority of law. The petitioner on

cancellation was therefore asked to report and was

accordingly relieved and joined Lilapur School.

3.6. The order of cancellation i.e. the order

cancelling the petitioner's transfer from Lilapur to

Laxmipura was challenged by the petitioner by filing

Special Civil Application No.10739 of 2021. The

Petition was allowed by an order dated 5.5.2022 and

is the subject matter of Appeal in LPA No.774 of

C/SCA/14229/2022 CAV JUDGMENT DATED: 22/08/2022

2022 scheduled to be heard, as per the order

impugned in the present proceedings on 24.08.2022.

3.7. The Respondent No.3, in compliance of the

order in the Petition and subject to further orders in

Appeal has passed an order that the petitioner be

posted at Laxmipura in compliance of the directions

of the Court, subject to the orders in LPA. (Since the

order cancelling the petitioner's transfer from

Lilapur to Laxmipura stood quashed).

3.8. The grievance of the petitioner in the

present Petition appears to be that despite the order

of relieving the petitioner to join at Laxmipura, since

no specific instructions that the petitioner be

relieved from Madhutra Primary School are passed,

the petitioner is not being relieved from Madhutra

(the place where she was transferred vide order

dated 01/12/2020) before she was transferred to

Lilapur though she had reported at Madhutra on

C/SCA/14229/2022 CAV JUDGMENT DATED: 22/08/2022

29.07.2021, after the cancellation of her transfer

from Lilapur to Laxmipura.

4. Mr. K.B. Pujara, learned advocate for the petitioner

would submit that once the order cancelling the

transfer of the petitioner from Lilapur to Laxmipura

stood cancelled she should be allowed to report at

Laxmipura. The natural consequence should follow

and merely because no instructions to relieve the

petitioner from Madhutra are mentioned the order is

not being implemented.

5. Mr. H.S. Munshaw appearing of the District Primary

Education Officer, Patan would extensively read the

affidavit-in-reply filed by the DPEO. He would submit

that the petitioner was posted at Lilapur vide an

order dated 05.06.2017 and the petitioner joined at

Lilapur. Based on the Government Resolution dated

23.05.2012 the student strength and the

determination of surplus teachers was done and the

C/SCA/14229/2022 CAV JUDGMENT DATED: 22/08/2022

petitioner was declared surplus in a primary school

(Std. 1 to 5) at village Lilapur, Taluka Saraswati and

was required to attend Camp for transfer of surplus

teachers of Std. 1 to 5. Since all the posts of Primary

Teachers were filled up, the petitioner was required

to be posted in the Upper Primary Section (Std. 6 to

8) and was therefore by an order dated 01.12.2020

posted at Madhutra, Taluka Santalpur, District

Patan. The petitioner did not obey the order of

transfer and report at Madhutra and continued at

Lilapur.

5.1. The then District Primary Education

Officer favoured the petitioner by accepting her

application dated 26.04.2021 and posted her at

Laxmipura Primary School by order dated

05.06.2021 as if it was a request transfer when it is

well settled that the DPEO cannot accept request

Transfers and the same is under the authority of the

Director of Primary Education. The petitioner

C/SCA/14229/2022 CAV JUDGMENT DATED: 22/08/2022

reported at Laxmipura School pursuant to the order

of transfer dated 05.06.2021 without reporting at

Madhutra and therefore the order of transferring the

petitioner by the DPEO from Lilapur to Laxmipura

was cancelled vide order dated 23.07.2021 and the

petitioner was directed to report back to Lilapur that

she did.

5.2. Mr. Munshaw would submit that since the

order of transfer was cancelled, the petitioner

reported at Lilapur on 28.07.2012, as is evident from

the communication dated 28.07.2021 of the Head

Master Lilapur (Koita) Primary School, Taluka

Saraswati. Even when the petitioner was transferred

to Madhutra vide the earlier order dated 01.12.2020,

the Lilapur Headmaster had relieved her to join at

Madhutra where she did not join then and only when

the order of transfer to Laxmipura was cancelled she

reported on 29.07.2021 after more than 7 months.

C/SCA/14229/2022 CAV JUDGMENT DATED: 22/08/2022

5.3. Mr. Munshaw would submit that despite

the order of transfer to Madhutra on 01.12.2020 she

did not join. She continued at Lilapur till she was

favoured by a transfer order dated 05.06.2021 and

posted at Laxmipura as if it was at her own request,

compelling the authorities to cancel the order of

transfer. She, then reported at Lilapur on

28.07.2021 and then Madhutra at 29.07.2021. The

order posting her at Laxmipura was contrary to the

GR dated 23.05.2021 and therefore the same was

rightly cancelled.

6. The reading of the facts and the submissions would

make it evident that in the Petition filed by the

petitioner, namely Special Civil Application

No.10739 of 2021 which was decided with a group

of other petitions, the Court had allowed the

Petitions and the orders of cancellation of transfers

were set aside and a direction was issued that once

these cancellation of transfers were set aside

C/SCA/14229/2022 CAV JUDGMENT DATED: 22/08/2022

necessary compliance was to be made within six

weeks from the date of receipt of the order.

7. The order dated 05/05/2022 is a subject matter of

challenge in the appeals being Letters Patent Appeal

No.772 of 2022 and allied Appeals and as far as the

present petitioner is concerned, the Letters Patent

Appeal is LPA No.774 of 2022.

8. Reading of the order dated 02.07.2022 passed by the

District Primary Education Officer indicates that in

compliance of the order of this court, since the order

dated 23.07.2021, cancelling the transfer of the

petitioner from Lilapur to Laxmipura stood quashed,

the petitioner has to be relieved so that she can join

at Laxmipura in accordance with the original order

of transfer dated 05.06.2021.

9. To recapitulate, the sequence of the orders of

transfer would indicate as under:

C/SCA/14229/2022 CAV JUDGMENT DATED: 22/08/2022

9.1. The petitioner was transferred from Koita

Primary School to Haripura Primary School, Taluka

Randhanpur vide an order dated 06.04.2017.

9.2. The order was cancelled and the petitioner

was transferred to Lilapur Primary School vide order

dated 05.06.2017.

9.3. She was then on 01.12.2020 transferred to

standard 6 to 8 at Madhutra Primary School where

she did not report. That order was never

implemented. The stand of the petitioner is that the

respondents never enforced the order and the stand

of the respondent is that petitioner did not report at

her transferred place at Madhutra.

10. Be that as it may, the petitioner was then

transferred to Laxmipura vide order dated

05.06.2021 where she reported on being relieved

C/SCA/14229/2022 CAV JUDGMENT DATED: 22/08/2022

from Laxmipura. The petitioner, as is evident from

the communication dated 07.06.2021 was relieved

by the Lilapur School to report at Laxmipura.

11. After she reported at Laxmipura, the order of

transfer to Laxmipura stood cancelled vide order

dated 23.07.2021 which was a subject matter of

Special Civil Application No.10739 of 2021. The

order cancelling the transfer to Laxmipura was set

aside and therefore it was incumbent upon the

respondent No.3 to post her back at Laxmipura in

compliance of the directions of this Court. In the

interregnum, it appears from the communications

dated 28.07.2021 and 29.07.2021 annexed to the

Petition which are communications of the Principal

of Lilapur School and the Head Master of the

Madhutra School respectively relieving the

petitioner from Lilapur and the petitioner joining at

Madhutra. In other words, once the order of transfer

dated 05.06.2021 to Laxmipura stood cancelled vide

C/SCA/14229/2022 CAV JUDGMENT DATED: 22/08/2022

order dated 23.07.2021, the petitioner reported at

Lilapur from where she was transferred to

Laxmipura and reported at Madhutra, on 29.07.2021

when according to the respondent No.3, she should

have reported as per order dated 01.12.2020. This

also was one of the reasons behind cancelling the

order of transfer dated 05.06.2021 vide order dated

23.07.2021.

12. Once the Court quashed the order of cancellation of

transfer to Laxmipura and directed reporting of

compliance,the respondent No.3 has, in compliance

therefore vide an order dated 02.07.2022 posted the

petitioner back at Laxmipura, albeit subject to the

further orders in LPA No.774 of 2022 which is to

come up for hearing according to the deponent

DPEO in the reply on 24.08.2022.

13. The question of the administrative issue that

appears to be a roadblock in implementation as is

C/SCA/14229/2022 CAV JUDGMENT DATED: 22/08/2022

culled out from the affidavit in reply of the DPEO is

that the petitioner never having reported at

Madhutra pursuant to the first order of transfer on

01.12.2020 and reaped the benefit of a subsequent

illegal order of transfer to Laxmipura by order dated

05.06.2021 (which stands in view of the order of

cancellation of that transfer to Laxmipura having

been quashed), the order cannot be implemented

administratively unless Madhutra School relieves

her but the School is accordingly not relieving her.

14. The controversy is for the period in the interregnum

i.e. in between the episode of transfer from Lilapur

to Madhutra, then Lilapur to Laxmipura and the

subsequent event of the order of transfer to

Laxmipura being cancelled and the cancellation now

being set aside and the compliance thereof vide

order dated 02.07.2022 by the DPEO.

15. The chain of events do indicate that the petitioner

C/SCA/14229/2022 CAV JUDGMENT DATED: 22/08/2022

had reported at Madhutra on 29.07.2021 after the

order of transfer from Lilapur to Laxmipura was

cancelled vide order dated 23.07.2021.

16. That order of cancellation of transfer from Lilapur to

Laxmipura having been cancelled and when the

DPEO had in compliance therefore passed an order

on 02.07.2022 to comply with such orders,nothing

should hold the DPEO back in passing necessary

consequential orders directing the Madhutra School

to relieve the petitioner in order to be an effective

compliance of the order of this Court of 05.05.2022

and the order of the DPEO dated 02.07.2022.

17. The petitioner should be forthwith permitted to

report at Laxmipura School. The communication

dated 18.07.2022 addressed by the DPEO to the

Head Master, Lilapur, which Mr. Pujara has placed

on record during the course of hearing indicates

that an explanation has been sought from the School

C/SCA/14229/2022 CAV JUDGMENT DATED: 22/08/2022

on the issue of relieving the petitioner from Lilapur

School to be given to the Taluka Primary Education

Officer, on two counts namely:

(A). That why was the petitioner not

relieved from Lilapur so that she could comply

with the order of transfer to Madhutra and she

was relieved only on 07.06.2021 to enable her

to join at Laxmipura, as per transfer order

dated 05.06.2021.

(B). That why was the order of 01.12.2020

transferring the petitioner to Madhutra

implemented after eight months i.e relieving

the petitioner from Lilapur immediately once

the order of transfer was passed on 05.06.2021

and then reliving her on 28.07.2021 to enable

her to join at Madhutra and why was the order

therefore implemented only on 28.07.2021 by

relieving the petitioner then though she was

C/SCA/14229/2022 CAV JUDGMENT DATED: 22/08/2022

transferred to Madhutra on 01.12.2020.

18. All this indicates that the period of dispute of the

petitioner's tenure at Madhutra is under scrutiny.

Irrespective of and without prejudice to the exercise

being undertaken the fact remains that the orders

subsequent thereto have been cancelled and the

natural and obvious compliance as is also accepted

by the DPEO is to permit the petitioner to report at

Laxmipura as directed by the DPEO's order dated

02.07.2022.

19. The DPEO, therefore, subject to the nature of

inquiry as is evident from the communication dated

18.07.2022 and subject to the further orders that

may be passed in LPA No.744 of 2022 should

forthwith direct the Headmaster, Madhutra Primary

School, Tal.: Santalpur to relieve the petitioner so as

to enable her to join at Laxmipura in order to it

being a complete compliance of this Court's order

C/SCA/14229/2022 CAV JUDGMENT DATED: 22/08/2022

dated 05.05.2022 passed in Special Civil Application

No.10739 of 2021.

20. The petition is allowed in terms of Prayer 10(b) with

no order as to costs. Rule is made absolute to that

extent. Direct Service is permitted.

[ BIREN VAISHNAV, J. ]

FURTHER ORDER

21. Mr. H.S. Munshaw, learned counsel for the

respondent - District Primary Education Officer

requests that the operation and implementation of

the order be stayed.

22. As observed in the order, the initial order is already

under challenge before this Court in Letters Patent

Appeal No.774 of 2022.

23. Request for stay is rejected.

[ BIREN VAISHNAV, J. ] VATSAL S. KOTECHA