Gujarat High Court
Lukka Diptiben Maganlal vs State Of Gujarat on 22 July, 2022
Bench: Biren Vaishnav
C/SCA/21137/2019 JUDGMENT DATED: 22/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21137 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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LUKKA DIPTIBEN MAGANLAL
Versus
STATE OF GUJARAT
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Appearance:
MR KB PUJARA(680) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 3
MR.UTKARSH SHARMA, AGP for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 22/07/2022
ORAL JUDGMENT
1. RULE returnable forthwith. Mr.Utkarsh Sharma
learned AGP waives service of notice of Rule on
behalf of the respondent nos.1 and 2 and
Mr.H.S.Munshaw learned advocate waives service
C/SCA/21137/2019 JUDGMENT DATED: 22/07/2022
of notice of Rule on behalf of the respondent No.3.
2. With the consent of learned advocates for the
respective parties, the petition is taken up for final
hearing.
3. By way of this petition under Article 226 of the
Constitution of India, the petitioner has prayed to
quash and set aside the order dated 27.07.2019
wrongfully transferring the petitioner from
Rajmahel Primary School, Chhaya Building pay
Center to Fatana Kanya Primary School, Sishali
Pay Centre.
4. Facts in brief would indicate that the petitioner
was appointed as Vidhya Sahayak by an order
dated 22.12.2001 and posted at Aditpara Primary
School, Ranavav. At her request, she was
transferred to Dharampur Patiya Primary School
by an order dated 04.02.2007. By mutual request,
she was then placed at Narsang Tekri Primary
C/SCA/21137/2019 JUDGMENT DATED: 22/07/2022
School by an order dated 01.07.2009 where she
reported on 02.07.2009.
5. On 06.04.2017. as an excess teacher she was
transferred from Narsang Tekri Primary School to
Rajmahel Primary School. However, due to
cancellation of camps, the transfer was
subsequently held by fresh order dated
06.06.2017.
6. Mr.K.B.Pujara learned counsel for the petitioner
would submit that the order dated 06.06.2017
referring to the order of 06.04.2017 and
categorically provided for the fact that the
petitioner's seniority would be considered as that
of the school in which she had become excess due
to over set up. In other words, since she had come
to the Narsang Tekri School on 02.07.2019 that
was the date which was required to be taken into
consideration for the purposes of seniority.
C/SCA/21137/2019 JUDGMENT DATED: 22/07/2022
7. It appears that Narsang Tekri school was merged
into Birla Primary School and when it came for the
respondents to decide on the question of referring
transfer a teacher to the Birla Primary School,
based in her case, whereas, considering
03.09.2013 as the date in case of one Ladani
Hitesh Virji. He was given preference in priority
for being transferred to the Birla Primary School
despite her date of seniority being 02.07.2019 in
accordance with the order of 06.06.2017.
Thereafter, considering the date 08.04.2017 by the
impugned order, she has been transferred from
Rajmahel Primary School, Chhaya Plot Pay Center
to Fatana Kanya Primary School, Shishli Pay
Center.
8. Mr.Pujara would refer to the representation made
by the petitioner prior to the impugned order
lodging her objection that the respondent
authorities for having her date of 02.07.2009 being
considered which was rejected by the
C/SCA/21137/2019 JUDGMENT DATED: 22/07/2022
communications including that one of the Director
of Primary Education, wherein, according to the
perception of the Director, Class-Kh of
Government Resolution dated 23.05.2012 was
applicable.
9. Mr.H.S.Munshaw learned counsel for the
respondent no.3 would rely on the reply filed on
behalf of the respondent District Primary
Education Officer, Porbandar. He would submit
that the petitioner was also granted the benefit of
request transfer and thereafter the benefit of
mutual transfer and therefore in accordance with
the policy resolution of 23.05.2012. Especially
Chapter-Kh which relates to transfer of surplus
deficit teacher's transfer, the relevant date that
was considered was 08.04.2017. He would submit
that the date of joining Mr.Ladani at the school i.e.
Rajmahal was 03.09.2013. The petitioner had
joined the school on 08.04.2017 and Mr.Ladani
was therefore rightly given the benefit on the basis
C/SCA/21137/2019 JUDGMENT DATED: 22/07/2022
of seniority of the said school relying on the
provisions of the said Government Resolution.
10. Considering the submissions made by the learned
advocates for the respective parties, facts need not
be reiterated. What is evident from the order of
transfer of the petitioner dated 06.06.2017, by
which, she was brought to Rajmahal Primary
School from Narsang Tekri Primary School, the
condition of the order clearly stated that her
seniority shall be considered as 02.07.2009 i.e. the
date on which she had joined and transferred at
Narsang Tekri. While considering the transfer to
the Birla School, in the opinion of this Court,
therefore, the authority should have considered
and the condition in the order of transfer dated
06.06.2017 which clearly stated that her seniority
shall be considered of that school where she had
become excess teacher i.e. 02.07.2009 and not
08.04.2017. If that is the date which is considered
as relevant for the purposes of seniority, evidently
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Ladani Hitesh Virji's date is post that of the
petitioner's i.e. 03.09.2013. The order of transfer
impugned in this petition, therefore, clearly falls
foul of the initial order of transfer and the
conditions stipulated therein i.e. taking into
consideration seniority and the date when she was
transferred as an excess teacher viz. 27.07.2009
as the date.
11. The order of transfer, as prayed for in the present
petition, is quashed and set aside.
12. It will be open for the petitioner to choose either
Birla Primary School or Trikamacharya Primary
School under Chhaya Plot Pay Center. It is open
for the respondents to consider posting the
petitioner at Birla Primary School or
Trikamacharya Primary School under Chhaya Plot
Pay Center. This exercise shall be done by the
respondents on or before 31.10.2022.
C/SCA/21137/2019 JUDGMENT DATED: 22/07/2022
13. The petition is allowed in the above terms. Rule is
made absolute to the aforesaid extent. Direct
service is permitted.
(BIREN VAISHNAV, J)
ANKIT SHAH
