Gujarat High Court
Chaudhari Jignasaben Jagubhai vs State Of Gujarat on 14 October, 2022
Bench: Biren Vaishnav
C/SCA/985/2020 JUDGMENT DATED: 14/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 985 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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CHAUDHARI JIGNASABEN JAGUBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR KB PUJARA(680) for the Petitioner(s) No. 1
MR KURVEN DESAI, AGP for the Respondent(s) No. 1,2
MR MP PRAJAPATI(677) for the Respondent(s) No. 3, 4
NOTICE SERVED BY DS for the Respondent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 14/10/2022
ORAL JUDGMENT
1. Rule returnable forthwith. Mr. Kurven Desai, learned
Assistant Government Pleader waives service of notice
of Rule for respondent Nos.1 and 2 while Mr. M. P.
C/SCA/985/2020 JUDGMENT DATED: 14/10/2022
Prajapati, learned counsel waives service of notice of
Rule for respondent Nos.3 and 4. Though served,
nobody appears for respondent No.5.
2. With consent of the learned advocates appearing for
the respective parties, the matter is taken up for final
hearing today.
3. The prayer in the petition is to quash and set aside the
order of transfer of the respondent No.5 dated
01.01.2020 and that of transferring the petitioner of
the same date. By the order dated 01.01.2020
(Annexure `D'), - respondent No.5 who was working as
Head Teacher was transferred from Dhadhusan School,
Taluka Mehsana to Mehsana Primary school No.3. By
an order of even date, the petitioner was transferred
from her School Megha Aliyasana to Bhasariya Primary
School.
C/SCA/985/2020 JUDGMENT DATED: 14/10/2022
4. Facts in brief would indicate that both; the petitioner
and the respondent No.5 having passed the Head
Teachers Aptitude Test became eligible for promotion
as Head Teachers, Class III. In the Seniority List so
published, the petitioner was placed at Sr. No.18 and
the respondent No.5 was placed at Sr. No.62. As per
their Seniority in the list, they were given the choice of
the school for being appointed as Head Teachers -
Class-III. The petitioner selected Megha Aliyasana
Primary School, Visnagar, whereas respondent No.5
selected the Dhadhusan Primary School. Both were
therefore promoted and posted respectively at the
Schools by orders of promotion dated 31.08.2012. Both
the petitioner and the respondent No.5 joined the
respective Schools on the same date i.e. 04.09.2012.
5. The orders of transfer by which the respondent No.5
and the petitioner have been transferred respectively
have been challenged on the ground of it being
C/SCA/985/2020 JUDGMENT DATED: 14/10/2022
contrary to paras 2.1 and 2.3 of the GR dated
09.10.2019. It is the case of the petitioners that these
orders have been passed contrary to the Clause in the
Resolution.
6. Mr. K.B. Pujara, learned counsel for the petitioner would
rely on the clause to indicate that while considering
cases of transfer in accordance with clause 2.3 of the
Resolution when the date of appointment as Head
Teachers is the same, for the purposes of seniority, the
date of initial appointment in the department has to be
taken as the relevant date for computing seniority.
Since both the petitioner and the respondent No.5
pursuant to their promotion orders dated 31.08.2012
joined as Head Teachers on the same date i.e.
04.09.2012, their initial date of joining the department
needs to be taken into consideration. As a result of
this, the petitioner who joined on 24.11.1997 is to be
considered senior to the respondent No.5 who joined
C/SCA/985/2020 JUDGMENT DATED: 14/10/2022
on 17.01.2001. It was obviously therefore the
petitioner should have been given priority of transfer in
view of she being senior to the respondent No.5.
7. Mr. Prajapati, learned counsel appearing for respondent
No.3 would draw the attention of the affidavit-in-reply
to the para 15 disputing this submission and contend
that so far as contention with respect to seniority is
concerned, as the date of entry as Head Teachers were
the same, it was the Date of Birth which was taken into
consideration. The Date of Birth of the respondent No.5
being 01.06.1974 and that of the petitioner being
29.07.1977, the respondent No.5 being elder, priority
rightly was given to the respondent No.5 in considering
the application for transfer.
8. Reading clause 2.3 of the Resolution dated 09.10.2019
would clearly indicate that while considering the
application for transfer on request, when the date of
C/SCA/985/2020 JUDGMENT DATED: 14/10/2022
joining as Head Teachers is the same, it is the date of
initial appointment in the department which needs to
be considered. It is only in a case where the date of
initial appointment in the department is the same, then
the next step is to consider the Date of Birth.
9. Facts on hand would indicate that it was clause 1 of
para 2.3 of the policy which was applicable in the facts
of the case, inasmuch as as the dates of appointment
as Head Teachers were the same, the date of initial
entry in the department ought to be considered. The
petitioner being an appointee of 1997 was
undisputedly senior to the respondent No.5 who joined
in the year 2001. Even in the Seniority List, the
petitioner ranked at Sr. No.18, whereas the respondent
No.5 was at Sr. No.62. The orders of transfer therefore
namely; dated 01.01.2020 in the case of the petitioner
and that of the respondent No.5 are contrary to the
Clause of the Resolution dated 09.10.2019. The orders
C/SCA/985/2020 JUDGMENT DATED: 14/10/2022
therefore at Annexure `D' and `E' dated 01.01.2020
are quashed and set aside.
10. The petition is allowed. Thereby, the fresh orders be
passed in accordance with the clause 2.3 of the
Resolution dated 09.10.2019 considering the petitioner
as senior to the respondent No.5 within a period of six
weeks from the date of receipt of this judgment by the
respondent authorities.
11. Rule is made absolute to the aforesaid extent. Direct
Service is permitted. No order as to costs.
(BIREN VAISHNAV, J)
VATSAL S. KOTECHA
