Jigishaben Rameshbhai Patel vs State Of Gujarat
2022 Latest Caselaw 10016 Guj

      C/SCA/16740/2020                              ORDER DATED: 13/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 16740 of 2020
                                  With
            CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2022
            In R/SPECIAL CIVIL APPLICATION NO. 16740 of 2020
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                         JIGISHABEN RAMESHBHAI PATEL
                                     Versus
                               STATE OF GUJARAT
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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
MR HS MUNSHAW(495) for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 4,5,6
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                               Date : 13/12/2022
                                ORAL ORDER

Rule. Learned advocates appearing for the respective respondents waive service of notice of rule.

1. The present petition is filed seeking quashing and setting aside the order dated 28.11.2020, whereby the petitioner has been declared surplus and further a direction is sought on the respondents to absorb the petitioner in the upper primary section in respondent no.5-School.

2. The petitioner was appointed as Vidhya Sahayak on 23.04.2010 in primary school at Nani Lacheli, Pay Center, Simalia Khurd, Taluka Dahod. After completion of satisfactory service of five years, she was given regular pay-scale. After the appointment, the petitioner pursued her study in Bachelor of Arts (B.A.)and cleared the B.A. examination with 59.16% with subject of Social Studies in the year 2018. The respondent, in view of the policy of the State Government prepared a list of surplus

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teachers on 31.08.2020. Pursuant to the said circular, the Taluka Primary Education Officer, Dhanpur prepared a setup for the lower division and published the same, wherein it is stated that as on 31.08.2020, the setup is of 5 teachers, whereas at present 8 teachers are working and therefore, 3 teachers are surplus. Even the setup for the upper division of primary teachers is also prepared, wherein one post of teacher of S.S. subject is shown vacant. In the present case, the petitioner has been declared surplus by order dated 28.11.2020 though there is vacancy of her subject in the Upper Primary Section in the same school. The petitioner immediately made a representation on 04.12.2020 and requested to stay the order.

3. During the pendency of the petition, the respondent authority treating the petitioner as qualified passed an order dated 08.05.2021 transferring and posting her in 6 to 8 division in LF Primary School, Pay Centre. The said order was subsequently cancelled by the order dated 13.05.2021 passed by the District Primary Education Officer and the cancellation was made subject to result of the present writ petition as well as any subsequent resolution or rules introduced by the State Government.

4. Learned advocate Ms.Vidhi Bhatt appearing for the petitioner has submitted that the issue is squarely covered by the judgment dated 05.05.2022 passed by the Coordinate Bench in Special Civil Application No.15537 of 2020. She has submitted that as on the date of the order dated 08.05.2021, the petitioner was qualified, however, subsequently by introduction of the resolution dated 01.04.2022 and changed policy, the petitioner was declared unqualified since by the said resolution, a

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condition was incorporated by the State Authority that in order to being eligible for the Upper Primary Section, a teacher possess the qualification of Teacher Eligibility Test - II (TET-II). She has submitted that thereafter the respondents again introduced the policy dated 14.10.2022 giving away the aforesaid condition of possession of TET-II by the teachers for getting eligible to be transferred to 6 to 8 division. She has submitted that pursuant to the interim order dated 10.05.2022 passed in Civil Application No.1 of 2022 in Special Civil Application No.16740 of 2020, this Court, by way of ad-interim relief, had directed the respondents to allow the petitioner to participate in the camp provisionally without acquiring TET-II examination. She has submitted that the petitioner accordingly participated in the same.

5. Learned advocate Ms.Bhatt has submitted that now in view of the changed policy since the condition of possession of TET-II qualification is removed, the status of the petitioner reverts back to the order dated 08.05.2021. Thus, she has submitted that the respondents may be directed either to implement the order dated 08.05.2021 or accept her application form, which has been filled by her pursuant to the interim orders passed by this Court.

6. Per contra, learned AGP Mr.Ronak Raval appearing for the respondent-State has submitted that the petitioner would not be entitled to any benefit since she was not possessing the qualification of TET-II, as required under the policy dated 01.04.2022. It is submitted that though by the subsequent policy dated 14.10.2022, the State Government has deleted the condition of possessing the TET-II qualification required for being appointed/posted to 6 to 8 school, the case of the petitioner is

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required to be considered as on the date when she was allowed to participate in the transfer camp. Thus, it is submitted that the present petition may not be entertained.

7. I have heard the learned advocates appearing for the respective parties.

8. As mentioned hereinabove, during the pendency of the petition, the State has introduced two policies dated 01.04.2022 and 14.10.2022. The policy dated 01.04.2022 prescribes the qualification of teacher possessing TET-II so as to give an option for being appointed or posted to upper division from 1 to 5 to 6 to 8.

9. The aforesaid condition of possessing of TET-II qualification has been deleted by the subsequent resolution dated 14.10.2022. It is not in dispute that after filing of the petition, the respondents have passed an order dated 08.05.2021 posting the petitioner from 1 to 5 to 6 to 8 by holding that she is qualified for the said post. A perusal of the order dated 08.05.2021 reveals that in fact the respondent authority has admitted and transferred the petitioner and posted her in 6 to 8 division by holding her qualified for the said division, however, subsequently, the said order has been cancelled by the order dated 13.05.2021. Merely because the petition was pending before this Court, the said order is cancelled. The aforesaid order dated 08.05.2021 specifically mentions that the action of the respondent authority would be subject to the result of the present petition and subject to further resolution or rules issued by the authorities. Thus, the respondents are governed by their conditions/note made in the order dated 08.05.2021. As per the aforesaid note, the respondents have

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to apply the subsequent resolution dated 14.10.2022 in the case of the present petitioner, by which the condition of a teacher possessing TET-II is deleted. In view of the subsequent resolution, the status of the petitioner will get restored prevailing at the time of passing the order dated 08.05.2021.

10. At this stage, it would be apposite to refer to the observations made by the Coordinate Bench in the order dated 05.05.2022 rendered in Special Civil Application No15537 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 and possessed the requisite qualification of graduation, which was prescribed at the relevant time when the order dated 08.05.2021 was passed in favour of the petitioner, 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 transferred to schools or absorbed in the upper primary

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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 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

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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 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

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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."

11. The aforesaid judgment is passed after the resolution dated 01.04.2022 was introduced by the State Government. The aforementioned observations were made by the Coordinate Bench will clarify that in the identical situation, this Court had directed the respondent authorities to give the benefit of being absorbed 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 cases of those teachers, who have filled in the option of being absorbed in upper primary division i.e. 6 to 8 prior to the 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.

12. In the petitions before the Coordinate Bench, such transfer orders, which were passed in favour of those petitioners, are cancelled. Hence, in view of the observations of the Coordinate Bench, in the identical case to

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the present petitioners, the order is required to be set aside. Hence, in light of the aforesaid directions issued by the Coordinate Bench, the respondents are directed to implement the order dated 08.05.2021. In case, the respondents find out difficulty to implement the order dated 08.05.2021, in the alternative the respondents are directed to act upon the option given by the petitioner in view of the interim order dated 08.05.2021 passed in Civil Application No.1 of 2022 in Special Civil Application No.16740 of 2020 and accordingly, pass necessary orders.

13. With these observations, the writ petition is allowed. Rule is made absolute to the aforesaid extent.

14. It goes without saying that in view of the subsequent order dated 08.05.2021, which is passed in favour of the petitioner, the surplus orders would get diluted.

15. As a sequel, the civil application does not survive and the same is disposed of in view of the order passed in the main matter.

(A. S. SUPEHIA, J) ABHISHEK/4