Patel Kalpeshkumar Kantibhai vs State Of Gujarat
2022 Latest Caselaw 10014 Guj

      C/SCA/9342/2022                                         ORDER DATED: 13/12/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 9342 of 2022
                                  With
              R/SPECIAL CIVIL APPLICATION NO. 9784 of 2022
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                         PATEL KALPESHKUMAR KANTIBHAI
                                     Versus
                          STATE OF GUJARAT & 4 other(s)
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Appearance:
MS VIDHI J BHATT(6155) for the Petitioner(s) No. 1
MR RONAK RAVAL, AGP for the Respondent(s) No. 1,2,3,4,5
MR MANISH J PATEL(2131) for the Respondent(s) No. 3
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                Date : 13/12/2022
                              COMMON ORAL ORDER

1. RULE. Learned advocates waive service of notice of rule for and on behalf of the respective respondents.

2. By the interim orders passed by this Court, the petitioners have been permitted to appear in the camps, which has been organized between 09.05.2022 to 11.05.2022 and accordingly, the petitioners have filled-in their options.

3. The writ petitions are filed challenging the action of the respondents in not accepting their forms in view of the Government Resolution dated 01.04.2022, which stipulates that in order to get posting in Division of Standard 6-8 of Upper Primary Schools, a teacher has to possess qualification of Teachers Eligibility Test-II (TET-II) examination. The petitioners filled-in

C/SCA/9342/2022 ORDER DATED: 13/12/2022

their forms in the year 2021, more particularly in the months of April and May, which were not accepted in view of the subsequent Government Resolution dated 01.04.2022, which stipulates aforesaid qualification.

4. It is the case of the petitioners that at the relevant point of time, when they had filled the option forms in the months of April and May, they were holding the requisite qualification of Graduate in order to get them posted at Division of Standard 6-8 of Upper Primary Schools however, the respondents, by placing reliance on the subsequent Government Resolution dated 01.04.2022, did not accept their forms.

5. Learned advocates for the respective parties have placed reliance on the common judgement dated 05.05.2022 passed by this Court in Special Civil Application No.15537 of 2020 and allied matters, wherein this Court has directed the respondents to accept the option form as well as to implement the orders passed by the respondent authorities subsequent to filling-up the option.

6. Pursuant to the interim orders passed by this Court, the petitioners have filled-in their option forms however, the same are not accepted because of the criterion of the possession of TET-II.

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7. At this stage, it would be apposite to refer to the observations made by the Coordinate Bench in the common judgement dated 05.05.2022 rendered in Special Civil Application No.15537 of 2020 and allied matters, wherein this Court, while examining the analogous situation and facts, wherein the teachers, who did not possess the TET-II qualification but possessed the requisite qualification of graduation, which was prescribed at the relevant time when they had filled the option forms in the months of April and May, has held thus:-

25. When all these resolutions are read in conjunction, what is evident is that the camps for absorption of qualified upper primary division sections have to be held between 1st April to 30th of April each year. Based on the qualifications prescribed under the resolution of 19.02.2014, viz. those incumbents who have done their B.Sc. or B.A. shall be treated as qualified for absorption in upper primary division and such qualified candidates will have to be asked for their options. Based on these options, as per condition no.4 of the resolution dated 19.02.2014, they shall be continued to be retained and absorbed in the upper primary division of the same school/pay center and talukas. It is thereafter that transfer camps based on the set up as on 31st August of each year has to be calculated and surplus camps for transfer have to be organized.

26. As far as the resolution dated 26.10.2020 is concerned, the embargo that is put on such transfers or movement of teachers from the lower division to the upper division is only restrictive inasmuch as the qualifications of the teachers in the respective section have to be assessed. Care has to be taken to see that those teachers who do not possess qualifications of Standards 6 to 8 are

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transferred to schools or absorbed in the upper primary division. This therefore, cannot be read to override the spirit of the policies of 16.02.2012 reformulated by resolution of 19.02.2014 in context of transfer policy dated 23.05.2012 amended from time to time. This therefore, has to be kept in mind before organizing surplus camps of transfer in consonance with the policy of 23.05.2012 post options being invited by virtue of the resolution of 19.02.2014 as the same is clearly stipulated in the resolution of 19.02.2014. What has also come on record that by virtue of the interim orders passed by this Court in Letters Patent Appeal No.111 of 2021 dated 08.02.2021 which reads as under, status quo was granted in favour of all such teachers:

"Heard Shri B.M. Mangukiya, along with Shri Harshrajsinh Vaghela, learned counsel for the appellants and Shri D.M. Devnani, learned Assistant Government Pleader for the State.

Shri Devnani, learned Assistant Government Pleader was granted time to obtain instructions in the matter on 27.01.2021. Today, he has received instructions in both the matters.

These two appeals have been preferred by the original writ petitioners, who are working as regular teachers in the primary/basic institutions of the State run under the Director Primary Education. In the writ petitions, they have challenged the camp being held for the transfer the State for adjustment of teachers depending upon the requirement of teachers in different schools based upon the strength of the students. If the students strength had fallen, then the teachers would become surplus and would be posted somewhere else where they were required, i.e., where the number of students had increased. The learned Single Judge, dealing with such matters from time to time had been passing interim orders. The effect of the interim orders was that these teachers would not be transferred pursuant to the transfer orders or that the transfer orders would not be given effect to. In some of the cases, liberty was also given to the teachers to participate in the camp indicating

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their choice and raising their objections, whatever may be permitted, but the decision so taken in the camp with respect to their transfer would not be given effect to.

According to Mr. Mangukiya, although 100 of teachers have got interim orders, unfortunately, the present appellants in the two appeals could only get an order to the effect that any subsequent action taken would be subject to outcome of the petition. He submits that this would mean that the present appellants would have to join at the transferred place. He further submits that all other teachers who have approached this Court are protected by different orders of the learned Single Judge and a group of such orders have been filed along with the stay application as AnnexureA collectively. It was for this reason that, we had granted Shri D.M. Devnani, learned Assistant Government Pleader time to obtain instructions as to whether the present two matters are similar to the other matters in which better interim orders have been granted. Shri Devnani, learned Assistant Government Pleader upon instructions has stated that similarly situate teachers have got interim orders in their favour staying their transfer.

In order to maintain similarity with respect to the teachers who have approached the Court, we dispose of these two appeals, by providing that till the disposal of the Special Civil Applications filed by the appellants, even if any decision is taken for their transfer, the same may not be given effect to and if already given effect to, the transfer orders be kept in abeyance. We, also, make it clear that in case any of the appellants desire to continue at the new place of posting, and do not wish to pursue or prosecute their petitions, they may give so in writing before the authorities and may continue, otherwise the transfer order as already stated above would remain in abeyance and shall be treated to be not given effect to.

With the aforesaid directions, the appeals stand disposed of. The learned Single Judge will proceed to decide the writ petitions

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on its own merits. We make it clear that we have not entered into the merits of the controversy.

Consequently, the connected civil applications also stand disposed of.

Direct Service is permitted."

27. The petitioners were asked to give options and transfer orders were made in accordance with the Government Resolution dated 19.02.2014. The petitioners holding qualifications for the upper primary division were invited and given transfer orders in the upper primary division. Mr.Mangukiya would submit that however, these transfer orders were subsequently cancelled subject to the outcome of these petitions.

28. Having held that the petitioners who are qualified to hold the posts in the upper primary divisions were entitled to the option of being so absorbed in the upper primary division in the same school, pay center or Taluka, should have been given such option prior to the holding of the transfer camps for surplus teachers based on the set ups as of 31st August each year and if orders have been passed in favour of such petitioners, giving them the benefit of being absorbed in the upper primary division, such orders shall be continued and the cancellation, if any, is set aside. Similar benefits shall also be given to those teachers who have been declared surplus due to merger of schools."

8. The aforesaid judgment is passed, after the Government Resolution dated 01.04.2022 was introduced by the State Government. The aforementioned observations of the Coordinate Bench will clarify that in the identical situation, this Court had directed the respondent authorities to give the benefit of being absorbed

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in the upper primary division to those teachers, who are qualified to hold the post at the relevant time. It is further directed by this Court that in the cases of those teachers, who have filled-in the option of being absorbed in upper primary divisions i.e. Standard 6 to 8, prior to holding of the transfer camps for surplus teachers based on the setups as of 31st August of each year and if orders have not been passed in favour of such petitioners, giving them the benefit of being absorbed in the upper primary division, such orders shall be continued and the cancellation, if any, was set aside. In the case before the Coordinate Bench, such transfer orders, which were passed in favour of those petitioners, were cancelled in view of the outcome of the writ petitions, which is the identical case in the present petition.

9. Under the circumstances, the respondents are directed to pass appropriate orders in view of the option forms, which are filled-in by the petitioners as per the interim directions issued by this Court.

So far as the petitioner of Special Civil Application No.9784 of 2022 is concerned, he has already filled-in the option form dated

C/SCA/9342/2022 ORDER DATED: 13/12/2022

11.05.2022, which is not accepted in view of the aforesaid reasons, hence the respondents are directed to accept the same and pass necessary orders. Accordingly, necessary orders shall be passed by the respondent authorities within a period of 06 (six) weeks from the date of receipt of writ of the order of this Court.

10. The writ petitions are allowed. RULE is made absolute. Direct service is permitted.

11. Registry to place a copy of this order in the connected matter.

                                                                 Sd/-      .
                                                          (A. S. SUPEHIA, J)
NVMEWADA