Karen Anitaben Motibhai vs State Of Gujarat
2022 Latest Caselaw 5936 Guj

     C/SCA/1795/2019                             JUDGMENT DATED: 05/07/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 1795 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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                        KAREN ANITABEN MOTIBHAI
                                 Versus
                           STATE OF GUJARAT
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Appearance:
for the Petitioner(s) No. 3,4
MR GAURAV CHUDASAMA(5660) for the Petitioner(s) No. 1,2,5,6,7,8,9
MR. SOAHAM JOSHI, ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
MR HS MUNSHAW(495) for the Respondent(s) No. 3
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 05/07/2022

                            ORAL JUDGMENT

1 The present petition is withdrawn qua petitioners Nos. 1,5 & 9.

Since petitioner No.2 has died, the petition stands abated qua petitioner

No.2. This petition will survive as far as the remaining petitioners are

C/SCA/1795/2019 JUDGMENT DATED: 05/07/2022

concerned.

2 Rule returnable forthwith. Mr.Soaham Joshi, learned Assistant

Government Pleader, waives service of rule on behalf of the State

respondents Nos. 1 and 2 and Mr.H.S.Munshaw, learned advocate,

waives service of rule on behalf of respondent No.3.

3 The case of the petitioners is that a writ of mandamus be issued to

quash and set aside the Seniority List dated 23.01.2019 issued by the

respondent No.3 and further direction be issued to include the names of

the petitioners in the Seniority List from the date of their original

application of Inter District Transfer.

4 Briefly stated, Mr.Gaurav Chudasama, learned counsel for the

petitioners, would submit that the petitioners joined their duties in other

districts after completion of five years in their service and they applied

for inter district transfer in the year 2012. The petitioners are having

qualification for taking the option, and therefore, they have given the

option for Upper Primary Section (standard 6 to 8).

4.1 It is the case of the petitioners that in accordance with Clause -GH

of the Policy dated 23.05.2012, the clause for Inter District Transfer

prescribes that 40% of the vacancies of the district transfer may be filled

up by way of district transfer, and thereafter, pending applications may be

C/SCA/1795/2019 JUDGMENT DATED: 05/07/2022

divided into four parts.

4.2 The controversy that has triggered this petition is that for the

purposes of considering the applications of the petitioners for Inter

District Transfer, the date of their application is not being considered but

their date of option for the Upper Primary Section is taken into

consideration.

5 Mr.Chudasama, learned counsel for the petitioners, would rely on a

decision of this Court in the case of Kiranben Jayantibhai Patel vs. State

of Gujarat & Ors., rendered in Special Civil Application No. 18313 of

2016., wherein, a case where the Clause - GH of the resolution dated

23.05.2012 was under consideration. The Court in paras 3 to 3.3 held as

under:

"3. The petitioner served in the Rapar Taluka at Kutch District and was appointed as Vidhya Sahayak on 30th November, 2008. It is the case of the petitioner that hers is an unblemished service career. It is averred that husband of the petitioner - Patel Ashwinkumar has been currently serving as Teacher at Dhandhusan Primary School, Dhandhusan in the district of Mehsana having been appointed on 05th September, 2011. The petitioner made an application on 19th December, 2013 to be transferred to Mehsana district since her husband was serving in the Mehsana. It appears that while the aforesaid application dated 19th December, 2013 was pending, petitioner opted to switchover to upper primary section for which order is passed shifting the petitioner to upper primary section on 01st June, 2016. 3.1 When the petitioner was shifted to upper primary section, at that time she reminded the authorities regarding her application of December, 2013 for inter-district transfer being pending. These letters of the petitioner are produced along with the papers of the petition.

C/SCA/1795/2019 JUDGMENT DATED: 05/07/2022

3.2 It appears that the process of conducting inter-district transfer of Mehsana district was initiated and seniority list of the Vidhyut Sahayaks aspiring to be transferred, was prepared. The petitioner's name was not included in the seniority list. As stated by the petitioner, she was orally communicated that her application was of the year 2016 and treating her application to be of the year 2016, her name was not included.

3.3 Precisely stated, the grievance of the petitioner is that her request that she had made application for inter-district transfer on 19th December,2013 and the said date ought to have been considered for the purpose of her entitlement, and not the date of her shifting to upper primary section which is the date adopted by the respondent authorities and shall be omit the name of the petitioner in the seniority list for transfer."

5.1 In that context, subsequently, the Court held as under:

"5.1 In Chapter GH, conditions regarding interdistrict transfer are mentioned. It provides that the teachers wanting to be transferred to different district would be required to make necessary application between 01st December to 31st December of the year concerned. The applications so received would be thereafter divided district-wise and would be sent for camps which may be held. It is also provided that after the seniority list of particular year is exhausted, thereafter only the seniority list for the next year would be operated. The condition which is significant to be considered in light of the facts of the case is that the application for inter-district transfer once made, shall be accepted as permanent request and necessary register could be maintained year-wise. This is provided in condition No.GH(11).

5.2 Thus it is the basic application for transfer made by the teacher of primary section is liable to be considered. The authority has to act upon for the purpose of inter-district transfer with reference to the said basic application. The date of the application would be material and relevant for the purpose of considering the case of the petitioner in terms of seniority for the purpose of entertaining her request.

6. It is an admitted fact that application was made by the petitioner on 19th December, 2013. The reason that the petitioner was

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shifted to upper primary section is of no relevant or consequence in so far as treating her application for inter-district transfer in terms of its seniority. When the application was made, as stated above, on 19th December, 2013, it is with reference to that the petitioner's claim would be considered. The event that the primary section came to be divided into lower primary and upper primary was a fortuitous circumstance not connected with the policy provisions in Resolution dated 23rd May, 2012. It has nothing to do with the claim of the applicants who want interdistrict transfer. The fact that order was passed shifting the petitioner to upper primary section cannot wipe out the original claim of the petitioner for inter-district transfer which was as per his application dated 19th December, 2013 and liable to be treated accordingly.

6.1 The policy of inter-district transfer would go topsy turvy if the basic date in the first application of the aspiring candidate is not applied and is not adhered to. It defies rationale that the respondent authorities disregarded the date of application, that is 19th December, 2013, but embraced the date of 06th June, 2016 for counting the seniority of the petitioner for inter-district transfer, though that date had nothing to do with the aspect of interdistrict transfer. Nor such justification can be seen to be stemming from the conditions of Resolution dated 23rd May, 2012.

6.2 If inter-district transfer is allowed to be operated with such interpretation, for every irrelevant or non-germane reason, the seniority would be changed and the purpose of inter-district transfer would be frustrated and the application of policy may go haywire. Therefore in case of the petitioner, her application dated 19th December, 2013 ought to be treated as basic date with reference to which her seniority and right to be transferred to the school within Mehsana district has to be considered. Nonconsideration of the claim of the petitioner with reference to the said date would not only not find support from the policy resolution, but the same is arbitrary, unreasonable and irrational, taking the toll of tenets of Article 14 of the Constitution.

7. In view of above, the respondents are directed to consider the application of the petitioner for her inter-district transfer to a school situated within Mehsana district with reference to and on the basis of her application dated 19th December, 2013, treating the said date of application to be the basedate. In the event,

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vacancy is not available in the school within Mehsana district, as soon as vacancy arises and available, case of the petitioner shall be considered by transferring her. It is directed that the respondent authority shall allow the petitioner to participate in the inter- district transfer camp for the purpose, which may be scheduled to be held within two months. However if the transfer camp is not held and the vacancy is arising within two months, the petitioner shall be given benefit of transfer on the basis of her seniority determined as above even without participation in the transfer camp.

This petition is allowed in the aforesaid terms. Direct service is permitted."

6 Mr.H.S.Munshaw, learned advocate for the respondent, would rely

on the affidavit in reply and submit that the option for primary section at

a subsequent point of time is of no importance and the Seniority List has

to be maintained and observed on the basis of the original date of receipt

of the application. He would, therefore, submit that grievance of the

petitioner would no longer survive. However, Mr.Chudasama, learned

counsel for the petitioner states that the benefit has yet not been granted.

7 Accordingly, the petition is allowed in terms of para 21(B) of the

petition and the petitioners applications for Inter District Transfer shall be

considered in light of the directions issued by this Court in the case of

Kiranben Jayantibhai Patel (supra). Rule is made absolute to the

aforesaid extent.

(BIREN VAISHNAV, J) Bimal