Gujarat High Court

Vikram Ganeshbhai Patel vs State Of Gujarat on 7 February, 2022

Bench: Biren Vaishnav

     C/SCA/7243/2019                                JUDGMENT DATED: 07/02/2022



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 7243 of 2019
                                 With
    CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2022
            In R/SPECIAL CIVIL APPLICATION NO. 7243 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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                       VIKRAM GANESHBHAI PATEL
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR GAURAV K MEHTA(5227) for the Petitioner(s) No. 1,2,3,4,5
MR.MEET THAKKAR, AGP for the Respondent(s) No. 1,2
MR HS MUNSHAW(495) for the Respondent(s) No. 3
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                            Date : 07/02/2022

                       COMMON ORAL JUDGMENT

1. Heard Mr.Gaurav Mehta learned advocate for the

petitioners, Mr.Meet Thakkar learned AGP for

respondent nos.1 and 2 and Mr.H.S.Munshaw

C/SCA/7243/2019 JUDGMENT DATED: 07/02/2022

learned advocate for respondent no.3.

2. In this petition under Article 226 of the Constitution

of India, the case of the petitioners is to direct the

concerned respondent authority to consider the case

of the present petitioners for inter-district transfer

from Kachchh to Patan.

3. Mr.Gaurav Mehta would submit that in the earlier

round of litigation, the petitioners were part of a

group of petitioners who had filed Special Civil

Application No.12449 of 2015, wherein, this Court

issued directions to consider the case of the

petitioners in the inter-district camp for transfer. It

appears that the present petitioners could not get

the benefit of this order and were not transferred to

Patan despite a direction of this Court.

Mr.Chudasama would submit that in fact one Jayanti

G. Shankarji Thakore junior to the petitioners got

the benefit of such transfer.

4. Mr.Meet Thakkar learned AGP for the State would

submit that the case of the petitioners could be

C/SCA/7243/2019 JUDGMENT DATED: 07/02/2022

considered only as and when a camp is held and not

in the midst of the term. Reliance is placed on an

order passed by the coordinate bench of this Court

in Special Civil Application No.4677 of 2021 dated

12.03.2021. He would rely on paras 5 to 9 of the

said order.

5. Mr.H.S.Munshaw learned counsel for the respondent

no.3 would submit that the policy of transfer has

been evolved by the Government of Gujarat by the

resolution dated 23.05.2012 and inter-district

transfer from one district to another is permissible

as per the provisions of such resolution, particularly

Chapter - GH. He would further draw the attention

of the Court to the reply and submit that the

petitioners had applied for inter-district transfer and

their applications are registered as Nos.1636, 1637,

1658, 1778 and 1911 and are received in the years

2006 and 2007 and they shall be considered on the

basis of the numbers so registered as and when

vacancies arise.

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6. Moreover, what is also pointed out in the reply is

that there are surplus teachers at Patan District

Panchayat considering the situation on 31.08.2015.

No camps are held after 09.08.2016 in view of the

fact of their being surplus teachers. The last camp

was held on 9th August and the benefit was given to

94 teachers in compliance of the order passed by

this Court in Special Civil Application No.12449 of

2016. Strength of sanctioned teachers is determined

by the director of Primary Education every year

reflecting the factual position as on 31.08.2018. No

camps have been held for the last three years.

7. Mr.Mehta would submit that there are about

approximately 250 posts lying vacant in the district

of Patan due to retirement.

8. Considering the submissions made by the learned

counsel for the respective parties and considering

the policy dated 23.05.2012 which has been

considered by this Court in its oral order dated

12.03.2021, it would be worthwhile to reproduce

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paragraphs 5 to 9 of the order passed in Special

Civil Application No.4677 of 2021, which read as

under:

"5. Having heard learned advocates appearing for the respective parties and having gone through the material on record, it is reflecting from the record that there is a policy framed by the authority vide notification dated 23.05.2012, by virtue of which, all kind of transfer orders can be dealt with. The policy also indicates that the transfer orders are to be considered normally in the camps which are being held on regular interval as mentioned in the policy itself. Further, there is a clear obligation contained in the policy with regard to an eventuality where if the vacancy arises in parent school, how to deal with the same. As such, the policy has framed the guidelines to consider the case and the grievance with regard to the request for transfer. But, there is no vested right reflecting on record of the petition to issue any mandate upon the authority in-between.

6. In addition thereto, order dated 03.12.2020 passed by the authority which is accepted by the petitioner itself is making it clear that this accommodation in upper primary section is not a permanent post and in future, whenever the camp will be organized with regard to accommodation, the petitioner will have to appear in the camp. When that be so, there is no reason for the petitioner to rush down to the Court in-between simply because some vacancy arose in the parent school and as such, learned AGP is justified in asserting that whenever the camps will be held, the request of the petitioner will be appropriately dealt with.

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7. The Court is also of the opinion that the issue related to transfer order is essentially within the domain of the authority to deal with on the basis of the prevalent guidelines and as such, such discretion cannot be usurped by the Court. Eventually to monitor the function of the authority, the observations are made on this behalf by the Apex Court in a decision in case of D. N. Jeevaraj vs. Chief Secretary, Government of Karnataka and ors.

reported in (2016) 2 SCC 653 . The relevant propositions contained in paragraphs 41 and 43 are reproduced hereunder :-

"41. This Court has repeatedly held that where discretion is required to be exercised by a statutory authority, it must be permitted to do so. It is not for the courts to take over the discretion available to a statutory authority and render a decision. In the present case, the High Court has virtually taken over the function of the BDA by requiring it to take action against Sadananda Gowda and Jeevaraj.

Clause 10 of the lease-cum-sale agreement gives discretion to the BDA to take action against the lessee in the event of a default in payment of rent or committing breach of the conditions of the lease-cum-sale agreement or the provisions of law.

[8] This will, of course, require a notice being given to the alleged defaulter followed by a hearing and then a decision in the matter. By taking over the functions of the BDA in this regard, the High Court has given a complete go-bye to the procedural requirements and has mandated a particular course of

C/SCA/7243/2019 JUDGMENT DATED: 07/02/2022

action to be taken by the BDA. It is quite possible that if the BDA is allowed to exercise its discretion it may not necessarily direct forfeiture of the lease but that was sought to be preempted by the direction given by the High Court which, in our opinion, acted beyond its jurisdiction in this regard.

43. To this we may add that if a court is of the opinion that a statutory authority cannot take an independent or impartial decision due to some external or internal pressure, it must give its reasons for coming to that conclusion. The reasons given by the court for disabling the statutory authority from taking a decision can always be tested and if the reasons are found to be inadequate, the decision of the court to by-pass the statutory authority can always be set aside. If the reasons are cogent, then in an exceptional case, the court may take a decision without leaving it to the statutory authority to do so.

However, we must caution that if the court were to take over the decision taking power of the statutory authority it must only be in exceptional circumstances and not as a routine. Insofar as the present case is concerned, the High Court has not given any reason why it virtually took over the decision taking function of the authorities and for this reason alone the mandamus issued by the High Court deserves to be set aside, apart from the merits of the case which we have already adverted to."

C/SCA/7243/2019 JUDGMENT DATED: 07/02/2022

8. In view of aforesaid situation which is prevailing on record, this Court is not inclined to issue any futile writ upon the authority and would not like to monitor the function of the authority which de-hors the guidelines and the policy framed for such purpose. Hence, the petition being devoid of merits deserves to be dismissed and the same is dismissed.

9. However, while parting with this order, it is made clear that the dismissal of this petition will not come in the way of the petitioner to make a request at an appropriate time when the camps will be conducted for such purpose in view of the policy."

9. In view of the above, the case of the petitioners has

to be considered in the camps that may be held in

accordance with the policy of the government dated

23.05.2012. Moreover, case of the petitioners can

be considered based on the vacancy position

situation as on 31st August 2021, as and when the

camps are held in accordance with the policy of the

State dated 23.05.2012. It will be open for the

petitioners to also point out to the concerned

authority with regard to the vacancies that have

occurred as stated by the petitioners viz. 250 in

number due to the retirement of teachers.