Patel Ashwinbhai Ramanbhai vs State Of Gujarat
2022 Latest Caselaw 9036 Guj

    C/SCA/15903/2020                             JUDGMENT DATED: 12/10/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 15903 of 2020


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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                       PATEL ASHWINBHAI RAMANBHAI
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR GAURAV CHUDASAMA(5660) for the Petitioner(s) No. 1,2,3,4,5
MR. KURVEN DESAI, ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2,4,5,6,7
MR HS MUNSHAW(495) for the Respondent(s) No. 3
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                             Date : 12/10/2022
                             ORAL JUDGMENT

1 Rule returnable forthwith. Mr.Kurven Desai, learned

Assistant Government Pleader, waives service of notice of

rule on behalf of the respondent - State. With consent of

C/SCA/15903/2020 JUDGMENT DATED: 12/10/2022

the learned advocates appearing for the respective

parties, the matter is taken up for final hearing today.

2 The prayer in the petition is to issue a writ of

mandamus, order or direction to direct the respondent

authorities to consider the seniority from the date of

appointment in the original mother school for the setup

transfer camp, Inter District Transfer Camp or any other

transfer camp.

3 Mr.Chudasama, learned counsel for the petitioners

would rely on an oral judgement dated 28.09.2022

rendered in Special Civil Application No. 15272 of 2020,

which read as under:

"Rule returnable forthwith. Ms. Niyati Vaishnav, learned advocate waives service of notice of Rule for the respondent No.1 while Mr. Soaham Joshi, learned Assistant Government Pleader waives service of notice of Rule for respondent Nos.1 and 2.

1. By way of this petition, under Article 226 of the Constitution of India, the petitioner has prayed for a direction to the respondent authorities to consider the seniority from the date of appointment i.e. 01.01.2003 in his original mother school at Nasmed for over set up transfer camp, inter district transfer

C/SCA/15903/2020 JUDGMENT DATED: 12/10/2022

camp or any other transfer camp. By way of an amendment, a further prayer is added to quash and set aside the transfer order dated 02.12.2020 by which the petitioner was transferred to Nasmed from Dabhla, Tal.: Kalol, District Gandhinagar.

2. The facts in brief would indicate that the petitioner was appointed as Vidhya Sahayak in the Primary Section at Gandhinagar on 31.12.2002. The petitioner was posted at Nasmed. Having been deputed as CRC, he was sent on deputation on 04.05.2013. On repatriation, as his deputation was cancelled on 03.04.2017, rather than being posted at his mother school at Nasmed, the petitioner was posted at Dabhla Primary School.

3. Mr. Gaurav Chudasama, learned counsel for the petitioner would submit that in light of over setup camp organized in 2020, the petitioner was declared surplus on the basis of his date at Dabhla. In support of this, he relied on a monthly statement of the Dabhla school which showed his date of appointment in such school as 09.02.2017. It was his submission that in light of the communication dated 12.08.2011, there was a specific direction that as and when CRC is repatriated on completion of his deputation, the seniority as based on the date of his appointment in mother school should be retained. The transfer in the year 2022 on he being declared surplus was posted on his date at Dabhla i.e. 09.02.2007 which was contrary to this instruction and even to the stipulation in the Resolution dated 23.05.2012, Clause 25 in particular thereof. Therefore, the prayers as aforesaid.

4. Ms. Niyati Vaishnav, learned counsel for respondent No.3 - District Primary Education Officer, District Primary Education Committee, Gandhinagar would submit that post the Circular dated 23.05.2012, the State has brought forward a Circular of 26.10.2020

C/SCA/15903/2020 JUDGMENT DATED: 12/10/2022

which indicates that when there is a merger of schools, seniority has to be fixed accordingly and based on this because of the merger, the petitioner was the junior most and, therefore, susceptible to transfer based on such date. She would rely on the relevant paragraphs in the affidavit-in-reply to submit that in light of the Resolution dated 26.10.2020, where, there are specific directions given that those primary schools where number of students are less than 20 should be merged alongwith another school and in such cases, if the issue of surplus teachers arise, then the teacher who came last in that particular school will be declared surplus.

5. Rejoinder has been filed to the reply.

6. Considering the factual aspects on the case on hand, it is evident that the petitioner was initially appointed as Vidhya Sahayak in the year 2002. He was posted at Nasmed Primary School, Kalol with effect from 01.01.2003. That, obviously was the mother school of the petitioner. On 04.05.2013, the petitioner was sent on deputation as CRC. On repatriation in the year 2017, he was sent to Dabhla instead of Nasmed which was his mother school. Clause 25 of the Resolution dated 23.05.2012 when read in conjunction with the communication dated 12.08.2011 would indicate that when the instead of repatriation occurs where CRC / BRC is repatriated, on such repatriation, the seniority in the mother school has to be maintained for all purposes.

7. Though, it is canvassed by respondent No.3 that as a result of merger of the Dabhla school, there was an incident of the petitioner being declared as junior most based on the Resolution dated 26.10.2020. Nothing is produced as no record to suggest the merger of schools resulted in such change in seniority.

C/SCA/15903/2020 JUDGMENT DATED: 12/10/2022

8. Apparently, in light of the Clause 25 of the Chapter `A' of Resolution dated 25.10.2012 when read in light of the communication dated 12.08.2011, in absence of anything to show that there was a merger of schools, the petitioner's seniority ought to be considered from the date of appointment i.e. 01.01.2003 in his original mother school for over setup transfer camp, inter district transfer camp and other transfer camp. An order of transfer 02.12.2020 therefore also needs to be quashed and set aside. Order accordingly.

9. The petition is allowed. Rule is made absolute to the aforesaid extent. Direct Service is permitted. No order as to costs."

4 In light of the above referred decision, the petition is

allowed. Apparently in light of Clause 25 of Chapter 'A' of

Resolution dated 23.05.2012, when read in light of

communication dated 12.08.2011, the petitioners

seniority ought to be considered from the date of their

appointment in their original mother school for over

setup transfer, Inter District Transfer and other transfer

camp. Orders of transfer dated 03.12.2020 are therefore

quashed and set aside. Rule is made absolute to the

above extent. Direct service is permitted.

(BIREN VAISHNAV, J) BIMAL