Gujarat High Court
Patel Rameshbhai Bhikhabhai vs State Of Gujarat, Education ... on 20 September, 2022
Bench: Biren Vaishnav
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8667 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9834 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9877 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 10095 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 10439 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 8302 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9135 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9201 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9240 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 10712 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9350 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9578 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9615 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9743 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 10122 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 10532 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 11438 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 11736 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 15058 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 11460 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 11741 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 12095 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 13162 of 2022
Page 1 of 60
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C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
With
R/SPECIAL CIVIL APPLICATION NO. 8615 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9786 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9848 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9238 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9998 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 11444 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9576 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9890 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 9894 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BIREN VAISHNAV
==========================================================
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 ?
==========================================================
PATEL RAMESHBHAI BHIKHABHAI
Versus
STATE OF GUJARAT, EDUCATION DEPARTMENT
==========================================================
Appearance: MR SHALIN MEHTA, SENIOR COUNSEL WITH MR HEMANG
M SHAH(5399) for the Petitioner(s) No. In Special Civil Application No. 8667,
9894, 9890, 9576 of 2022
MR PP MAJMUDAR for the Petitioner(s) No. In Special Civil Application No.
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
11741, 11460, 15058, 11736, 11438 AND 10095 of 2022
MR GAURAV CHUDASMA for the Petitioner(s) In Special Civil Application
No. 9135, 9743, 10532, 10122 of 2022
MS VIDHI BHATT for the Petitioner(s) In Special Civil Application No. 9201 of
MR SANDIP PATEL for the Petitioner(s) In Special Civil Application No. 9238,
9998 AND 11444 of 2022
MR RD KINARIWALA for the Petitioner(s) In Special Civil Application No.
8615, 13162, 9786 AND 9848 of 2022
MR BHAVESH PATEL for the Petitioner(s) In Special Civil Application No.
9615, 9240, 12095 AND 10712 of 2022
MR SURAJ MATIEDA for the Petitioner(s) In Special Civil Application No.
9703 of 2022
MS MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER with MS
SHRUTI PATHAK, AGP for the Respondent(s) No. 1, 2
================================================== ==========
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 20/09/2022
CAV JUDGMENT
1. These petitions, under Article 226 of the
Constitution of India, have been filed by primary
teachers / Vidhyasahayaks challenging certain
provisions of the Government Resolution dated
01.04.2022.
2. According to the petitioners, certain provisions
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
of the resolution especially Clause D(12), J(5)
and L(4) are violative of Articles 14, 16 and 21 of
the Constitution of India. According to the
petitioners, these provisions cannot be made
applicable to them retrospectively or
retroactively inasmuch as their long seniority
for the purposes of intra/inter - district transfer
is jeopardized.
3. Facts are more or less common in each of the
petitions and therefore facts of Special Civil
Application No.8667 of 2022 are discussed.
4. The petitioners were appointed as Vidhya
Sahayaks in different primary schools under the
State. Upon completion of 5 years of service,
their services came to be regularized. During the
year 2009, with the enforcement of the Right to
Education Act, 2009, primary section was divided
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
into two divisions; lower primary division
(Standards 1 to 5) and upper primary division
(Standards 6 to 8).
5. The qualifications required for teaching in the
lower primary divisions and the upper primary
divisions were later on prescribed by
Government also under resolutions under the
Right to Education Act. The eligibility criteria in
terms of educational qualifications for both
divisions were different. The bifurcation of the
two divisions was explained in The Right To
Education Act. It was carried out by the State of
Gujarat by issuing Government Resolution dated
01.04.2010. As a result of the division into lower
and upper primary divisions, it was decided by
the government by issuing resolution dated 16 th
of February 2012 that those teachers who were
appointed prior to 10.06.2010 will be considered
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
as primary teachers of the lower primary division
and those appointed thereafter subject to they
having obtained the requisite educational
qualification will be treated as upper primary
division teachers.
6. The policy of regulating transfer of primary
teachers was framed by a Government
Resolution dated 23.05.2012 which provided
guidelines for transfer of primary teachers
teaching in primary sections and upper primary
divisions respectively.
7. It is the case of the petitioner that the clauses of
the resolution provided that the authorities were
under an obligation to organize transfer camps
once in a year during summer vacations for inter-
district/intra-district transfers, mutual request
transfer etc. The reservation further provided
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
that lower primary division teachers will be
transferred to lower primary division and upper
primary division teachers will be transferred to
respective branches in the upper primary
division.
8. For inter-district transfer of teachers the
relevant clause provided that 40% of the vacant
posts in a district are to be filled in by way of
intra/inter district transfer of which 50% are to
be filled by giving preference to widow teachers
handicapped/disabled teachers, couple teachers
and teachers belonging to Valmiki community.
The remaining 50% of the vacancies are to be
filled-in on the basis of seniority. The clause
further provided that pending applications for
district transfer required to be divided into four
divisions and upper primary division teachers
will be sent in the upper primary division on
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
giving an option. The resolution further provided
that the said change of moving from the lower
primary division to the upper primary division
will have no effect on the applications already
made and the date of seniority of the said
applications will be maintained
9. The relevant clause further provided that year
wise seniority list will be maintained. Moreover
the District Primary Education Officer has to
maintain seniority list as per the date of
appointment. One of the clauses of the resolution
provided that for intra/inter district transfer
applications made by teachers will be considered
to be final and for the purpose of seniority, year
wise register is required to be maintained.
10. It is the case of the petitioner that the resolution
dated 23.05.2012 which provided that the
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
District Primary Education Officer shall prepare
a register on the basis of seniority was further
clarified by resolution dated 07.09.2013 by which
it was held that for the purpose of seniority the
same would be counted from the school from
which the option is exercised.
11. Further a resolution was issued by the state on
19.02.2014 which provided that those primary
teachers who fulfill the eligibility criteria for
teaching in upper primary divisions will have to
submit their options to the District Primary
Education Officer from April 1 to April 30 in any
year.
12. It is the case of the petitioner that pursuant to an
application made under The Right to Information
Act for the purpose of seeking information, a
copy of the communication dated 17.07.2017
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
was addressed by the respondent no.1 to the
Government Pleader of High Court of Gujarat. It
was clearly stated that an upper primary teacher
after exercising option would be placed in the
seniority list as per the date of initial
appointment.
13. By the resolution under challenge dated
01.04.2022, all the previous Government
Resolutions especially the resolution dated
23.05.2012 have been superseded and
completely new set of terms and conditions for
intra/inter district transfer have been made.
Aggrieved by certain provisions of the resolution
which are said to be made applicable to the
petitioners retrospectively the action is
challenged by the petitioners.
14. Mr Shalin Mehta, learned Senior Advocate
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
appearing with Ms. Shikha Panchal made the
following submissions:
(A) Mr Mehta would submit that on perusal of
the government resolution dated 01.04.2002, in
particular, clause D-12 thereof, indicates that for
the purpose of making intra/inter district
transfer applications seniority for the same is to
be counted from the date of seeking option to
come over from the lower primary section to the
upper primary section and not from date of
joining the school in the first instance. Mr Mehta
referred to a chart placed along with the petition
which indicates various particulars of the date of
joining the school, date of exercising option to
come over to the upper primary division etc. If
the date of exercising option to come to the
upper primary section is to be taken into
consideration for the purpose of making an
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
application for inter/intra district transfer then it
implies that past service rendered by such
teacher on the post of primary teacher will be
wiped out. Such teacher would be eligible to
make an application for Intra/Inter District
Transfer upon completion of 5 years of the
posting in the upper division. If this is to operate
teachers who are otherwise senior will become
junior. It is submitted by the learned counsel for
the petitioner that seniority determines the
particular place which an employee occupies in
the cadre to which he/she belongs. The whole
purpose of the object of granting seniority in the
present case is for the purpose of enabling the
teacher to make an application for intra/inter
district transfer. The question of seniority has to
be determined on the basis of rules in force on
the date of appointment of service. He would
submit that the petitioners clearly have a vested
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
right accrued by virtue of the resolution dated
23.05.2012 by which it had been specifically
stated that in the event a teacher teaching in the
primary section upon achieving higher
qualification has to come over to the upper
primary section then the teacher would not lose
his/her seniority from the date of joining of
school of first instance.
(B) With regard to retrospective application of
the resolution dated 01.04.2022 Mr. Mehta
would submit that the resolution dated
01.04.2022 specifically states that the right of a
teacher to submit an application for intra/inter
district transfer is to be counted from the date of
seeking option to come over from the lower
primary section to the upper primary section and
not from the date of joining of the school in the
first instance. This implies that the service
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
period rendered by each of the teacher in the
past would be wiped out and thereby deprive
each of the teacher from making an application
for transfer. It is settled law that service
conditions pertaining to seniority are liable to
alteration by subsequent changes but not in such
a manner by which the entire past service
rendered by an employee is wiped away.
(C) He would submit that the resolution itself
stipulates that it will come into effect from the
date of its conception and therefore vested rights
cannot be taken away and the resolution cannot
operate retrospectively.
(D) Mr Mehta further submitted that right to
transfer may not be a fundamental right but a
right to be considered for transfer is recognized
as a fundamental right and cannot be
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
altered/modified to the detriment of the
employee to be transferred. He would submit
that once in a lifetime a teacher can avail of
inter/intra district transfer. However by the
resolution dated 01.04.2022 that right is
modified and the petitioners would be deprived
of their right to be considered for transfer.
(E) Conceding to the fact that policies need to
change, the same cannot be to the detriment of
the employees, he would submit that here is a
case where teachers would be entitled to make
an application for intra/inter district transfer
from the date of seeking option to come over
from the lower primary section to the upper
primary section and not from the date of joining
the school in the first instance. While
altering/modifying the policies, the framers have
to ensure that proper care is taken about service
conditions including seniority and transfer. The
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
general rule is that if seniority is to be regulated
in a particular manner in a given period it shall
be given effect to and shall not be varied to the
disadvantage of the employee.
(F) Mr Mehta would submit that the past
service of the petitioners in the form of seniority
in the matter of seeking intra/inter district
transfer is either seriously affected or
compromised and wholly destroyed. Vested
rights cannot be destroyed by government
resolution issued in exercise of executive powers
under Article 162 of the Constitution of India.
(G) Mr Mehta would rely on the following
decisions;
1) S.B.Patwardhan and Another versus
State Of Maharashtra and Ors. reported
in (1977) 3 SCC 399. (Para 26)
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
2). Civil Appeal No.7364 of 2014
decided on 5.5.2022 (Paras 31, 33)
3). Chairman Railway Board vs
C.R.Rangadhamaiah reported in (1997) 6
SCC 623.
15. Ms. Vidhi Bhatt learned Advocate appearing for
the Petitioners would also submit that clauses
D(12), H(3), J(5), L(3) and L(4) are violative of
Article 14 of the Constitution of India.
15.1 In addition to the submissions made by Mr.
Mehta, Ms.Bhatt would submit that the relevant
clause of the Government Resolution dated
23.05.2012 states that pending applications for
inter district transfer are required to be divided
into four divisions. It further states that upper
primary teachers would be absorbed against the
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
subject in upper primary division for which
he/she has given option and the same has been
accepted. The said change would not have any
effect on the initial applications already made for
inter district transfer and the date of seniority of
the said applications will remain as it is.
15.2 Ms. Bhatt would submit that as per the
clauses of the Government Resolution dated
23.05.2012 even on bifurcation of the divisions
the seniority list for each category is to be
prepared on the basis of length of service
counting from the date of their initial entry into
service in a district.
15.3 She would submit that reading of the
relevant clauses of the Resolution would indicate
that the initial applications made by teachers
who were treated as lower primary teachers but
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
have migrated to upper primary division at the
time of transfer would be absorbed against the
subject he/she has given option and the same has
been accepted. The said provision ensures that
no teacher is given out of turn favour.
15.4 She would further submit that as per
Government Resolution dated 23.05.2012, in a
school if the pupil teacher ratio is not maintained
that the junior most teacher of the school will be
rendered surplus. For determining the seniority
of the school, a list will be prepared based on the
date of entry of teachers in that school. The last
teacher to be appointed in the school will be the
first one to go out.
15.5 She would submit that from 23.05.2012 to
31.03.2022, the policy of reckoning the seniority
of lower primary teachers who migrated to upper
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
primary division has remained intact. All the
teachers including the petitioners have submitted
their option to teach in upper primary division
clearly keeping in mind that their seniority would
be counted from the date of entry in service and
for the purposes of inter-district transfer, their
initial application would not be affected. Also for
the purpose of Intra District Transfer, their
seniority would be considered from the date of
appointment in the school from where they had
given their option to join as upper primary
teacher. For the likes of the petitioner
everything has become topsy-turvy with the
advent of the new resolution dated 01.04.2022.
The resolution will now provide that option for
transfer will be considered for those who have
submitted their option forms in their 2021 after a
period of three years and for inter district
transfer or transfer by mutual consent another
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
district for a period of 5 years. The resolution on
being given retrospective effect the petitioners
would lose more than 10 years of their seniority
of their applications. She would rely on the
decision in the Accountant General and
Another vs. S.Doraiswamy and Others
reported in (1981) 4 SCC 93.
15.6 Ms. Bhatt would submit that the rationale of
the Government to give retrospective effect is to
be stated to be the observations made by this
Court in Para 13 of the Oral Judgement dated
08.04.2019 in Special Civil Application No.6480
of 2016 whereas in that para itself the court has
observed, that it is clarified that if the seniority is
already assigned and fixed for the current
year/session shall not be disturbed.
15.7 She would submit that the resolution
withdraws a promise in a representation made
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
earlier. Retrospective laws are as a Rule, a
questionable policy and contrary to the general
principle that a legislature by which the conduct
of mankind is to be regulated when introduced
for the first time to deal with the future acts and
ought not to change the character of past
transactions carried out upon the faith of
existing laws.
15.8 She would submit that seniority may
not be a fundamental right but a civil right.
Infringement of the said right would be
permissible only if there exists a validly framed
statute or a rule under Article 309 of the
Constitution Of India.
16. Mr.P.P.Majmudar learned advocate also
appearing for the petitioners in some of the
petitions would submit that when the petitioners
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
were selected, the old policy was in force and
had they known that due to change in policy they
will lose their seniority they wouldn't have opted
to go into the upper primary division. When they
made applications to opt for upper division they
were told that their appointments will be
considered from the date of opting school at first
instance and would get a priority in the camps to
select their districts which right, now has been
wiped out by the policy of 01.04.2022. He would
reiterate the submissions made by Mr.Mehta.
17. Mr Gaurav Chudasama learned counsel for the
petitioners in addition to the submissions made
by the learned counsel for the respective parties,
would rely on the decision of this court in the
case of Special Civil Application No.18313 of
2016 wherein this Court held that if the
interpretation for the purpose of inter district
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
transfer is permitted as per the State, the whole
policy will go haywire and therefore, right to be
transferred to a school has to be on the basis of
the date of initial appointment and or application
made and not on the date of option exercised for
going into the upper primary division.
18. Mr. R.D.Kinariwala learned counsel for the
petitioners in special civil application is filed on
behalf of certain other petitioners also submitted
that the clauses which have been set out in the
petitions which have been placed for
consideration violate Articles 14 and 16 of the
Constitution of India. He would submit that by
bifurcation of the two sections the cadres do not
change and also the payscales of lower primary
teachers and upper primary teachers remain the
same. Therefore the altered conditions of
considering the date of application for transfer
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
which adversely affect their seniority is illegal
and violates a constitutional guarantee enshrined
under Article 14 of the Constitution of India. He
would rely on a decision of the Supreme Court in
the case of N.K.Chauhan versus State of
Gujarat reported in AIR 1977 SC 251.
19. Ms. Manisha Lavkumar learned Government
Pleader has appeared with Ms.Shruti Pathak and
Mr.Utkarsh Sharma for the State and made the
following submissions:
(1) She would submit that the challenge in these
petitions on the retrospectivity of the
Government Resolution dated 01.04.2022 and
other challenges are misconceived.
(2) She would submit that the petitions deserve
to be dismissed as there is no illegality
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
committed by the State in passing the
Government Resolution dated 01.04.2022 as it
was framed with a view to bring in uniformity
and iron out creases in the earlier resolutions.
(3) She would submit that as a result of the
enactment of the RTE Act of 2009, there was an
overhaul in the system of education inasmuch as
Standards 1 to 5 were demarcated as Lower
Primary Education and Standards 6 to 8 were
demarcated as Upper Primary Sections.
(4) She would submit that consequences of the
Government Resolution dated 27.04.2011
describe differential qualification so far as lower
primary division is concerned and also for the
upper primary division. She would submit that so
far as lower primary division is concerned the
qualifications for such teachers would HSC +
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
PTC + TET - 1 for standard 1 to 5 whereas for
the upper primary section the qualifications for
graduation + B.Ed + Tet - 2, which is further
divided in three subjects of Maths, Science and
language. She would submit that in exercise of
powers under Article 162 of the Constitution of
India and in exercise of powers conferred under
Section 54 of the Bombay Primary Education
Act, the State Government is empowered to give
such directions which are necessary with regard
to matters concerning primary education.
(5) She would briefly take the Court through the
resolutions dated 15.04.2010, 27.04.2011,
16.02.2012 and submit that the resolutions
provided a cut-off date of 31.03.2012 on which
date it was mandatory for those who apply for
Standard 6 to 8 to have a qualification of Tet - 2.
She would submit that it is very relevant to bring
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it to the notice of the Court that with the
bifurcation of primary section and two divisions
keeping in view the student teacher ratio and
different qualifications, large number of teachers
were being rendered surplus. This factor was
also considered not relevant for TET-2 to enable
the teachers to stay in the same school and at the
same pay center.
(6) She would submit that the mode and
manner of operation of the new consolidated
transfer policy by virtue of the resolutions in
question, teachers teaching in the upper division
approached this Court challenging the action of
the authorities seeking orders restraining the
respondent authorities from operating a new
consolidated transfer register published in the
year 2016 for the upper primary division. It was
contended by the petitioner that if a primary
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
teachers are to submit their options every year
on fulfilling the requisite qualifications and get
appointment in standards 6 to 8 every year the
transfer register maintained for standard 6 th to
8th would continue to be reshuffled and
readjusted on the original date of the application
made prior to the absorption based in standards
6 to 8. Relying on the relevant para 10 of the
decision she would submit that the Court held
that the right to make an application accrues to a
teacher who wants to migrate to the upper
primary division only when she acquires such
qualifications or who already possesses the
same on or before 31.03.2012. The moment two
sections came into existence application filed
before the coming of the two sections same gets
obliterated and the seniority of the applicants is
required to be considered from the date of the
option that is which is filed after 31.03.2012.
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
According to the Court the applications which
are filed by the teachers prior to the division of
two sections gets diluted. Since after the
bifurcation of divisions the teachers are
designated as teachers of lower primary section
and upper primary section on the basis of their
qualifications, she would submit that it is in light
of this decision of the court it was necessary to
bring out a comprehensive policy and therefore
the resolution dated 23.05.2012 was modified
and a comprehensive resolution in the form of
the resolution dated 01.04.2022 was brought into
force.
(7) The learned Government Pleader would
submit that in exercise of powers under Article
162 of the Constitution of India read with Section
54 of the Bombay Primary Education Act 1947
the State Government has issued various
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
resolutions and the policy of transfer to primarily
ensure effective implementation of the RTE Act
2009.
(8) She would submit that the RTE Act is child-
centric and therefore transfer for multiple
administrative reasons must be considered by
the state authorities keeping in mind focus of the
state government to effective imparting of
education by qualified teachers to children of the
age of 6 to 14.
(9) The learned Government Pleader would
further the submit that with the advent of the
RTE Act primary education in the State of
Gujarat underwent a sea change. The teachers
imparting education in the primary education as
compared to to those in the upper primary
division had lower qualifications. The state
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
government resolved to give an option to those
teachers who possess the qualification of
graduation without requiring them to undergo
TET so as to enable them to stay in the same
school in the upper primary division and/or in the
same pay center. By exercising this option all
such teachers made a voluntary decision to move
to the upper primary division for various reasons.
By virtue of exercising the option to go to the
upper primary division they could stay in the
same pay center on same school. A consolidated
reading of the Government Resolutions of 2012
to 2019 would demonstrate that the policy of
transfer has been evolving from time to time to
meet the administrative needs and fulfill the
requirements of the teachers seeking transfer.
(10) It was in light of the decision of this Court,
which found that the policy hitherto followed was
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
modified and therefore thought it fit to bring in
the resolution dated 01.04.2022.
(11) The Government Pleader submits that
pension, seniority, pay grades etc. are all service
conditions. By virtue of the impugned
Government Resolution, no service conditions
are altered. The petitioners are entitled to
continue to be granted pay in terms of their
appointment and their seniority from date of
appointment. The seniority referred to in the
Government Resolution is essentially a
preference or priority for consideration of
transfer.
(12) She would further submit that while the
state government is empowered to modify
policies from time to time the same cannot be
made retrospectively applicable. There is
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
material distinction between Act and Rules and
policies. The policy as per the Government
Resolution and the challenge is in consonance
with the judgement of this court dated
08.04.2019 passed in Special Civil Application
No.6480 of 2016.
(13) Learned Government Pleader would submit
that the petitioners have admitted that there is
no vested right. The policies are and can be
modified from time to time in order to meet the
exigencies and demands of the teachers seeking
transfer. The transfer can neither be a vested
right nor can it be claimed to be in contravention
of the policy.
(14) Ms.Manisha Lavkumar Learned Government
Pleader would rely on the following decisions:
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(i) State of Haryana and Others vs. Kasmirsingh
and Another [(2010) 13 SCC 306];
(ii) Airports Authority of India vs. Rajeev Ratan
Pandey and Others [(2009) 8 SCC 337];
(iii) Ekta Shakti Foundation vs. Government of
NCT of Delhi [(2006) 10 SCC 337];
(iv) Union of India and Others vs. Janardhan
Debanath and Another [(2004) 4 SCC 245];
(v) State of U.P and Others vs. Gobardhan Lal
[(2004) 11 SCC 402];
(vi) Kendriya Vidhyalaya Sangathan vs.
Damodar Prasad Pandey and Others [(2004) 12
SCC 299];
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
(vii) National Hydroelectric Power Corporation
Ltd. vs. Shri Bhagwan and Another [(2001) 8
SCC 574].
20. Having considered the submissions of the
respective parties, the question that requires to
be decided is whether the relevant clauses
challenged by the Petitioners of the Government
Resolution dated 01.04.2022 can be said to fail
the test of Article 14 or can be said to be one
which operate retrospectively so as to take away
the vested rights of the Petitioners.
21. Before the Right To Education Act, 2009 was
enacted there was only one division that was the
Lower Primary Division which comprised
Standards 1 to 7. As a result of the Act coming
into force, the primary section was divided into
two divisions, namely lower primary division
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(standard 1 to 5) and upper primary division
(standard 6 to 8). The qualifications for
appointment were different and therefore that is
not a matter of dispute. Even it is an admitted
position that those Primary Teachers who
acquired the higher qualification to be eligible to
work as teachers in the upper primary division
were given the chance to opt for going over to
the upper primary division. This was in
accordance with the Government Resolution
dated 16.02.2012.
22. The State with a view to regulate the transfer
policy of primary teachers/vidhyasahayak framed
a policy resolution dated 23.05.2012. The
Government Resolution provides for various
chapters pertaining to the transfer of teachers.
23. Chapter Ka(A) provides for various types of
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transfers like mutual transfer, transfer due to
internal demand, district transfer, transfer due
to serious illnesses and administrative transfer.
The said chapter also refers to various types of
teachers teaching in lower primary section and
upper primary section which are divided into
three categories of (1) Science and Maths (2)
Social Science and (3) Languages. The Rules of
Transfer etc. were extensively considered by a
decision of this Court in Special Civil Application
No.3255 of 2019 and allied petitions (Coram:
Mr.Justice Bhargav Karia), where, in Paras 18 to
23 the Court held as under:
"18. Having heard the learned advocates for
the respective parties and having
considered the Government Resolutions
dated 23.5.2012, 18.2.2014 and 26.10.2020
pertaining to the rules for transfer of upper
primary section of Vidhya Sahayaks and
lower primary section of Vidhya Sahayaks
which are relied upon by the respective
parties, the relevant rules can be
summarised as under :
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
i) Government Resolution dated 23.5.2012 is
a policy decision of the State Government
prescribing the rules for transfer of
teachers/Vidhya Sahayaks of lower primary
and upper primary section of schools in the
State of Gujarat substituting the earlier
Government Resolutions issued from 2004
to 2009.
ii) Government Resolution dated 23.05.2012
provides various chapters pertaining to the
transfer of teachers/Vidhya Sahayaks of
lower primary and upper primary section in
the Government schools.
iii) Chapter Ka(A) provides for various types
of transfers like mutual transfer, transfer
due to internal demand, district transfer,
transfer due to serious illness and
administrative transfer. The said chapter
also refers to various types of teachers
teaching in lower primary section i.e. from
standard 1 to 5 and upper primary section
i.e from standard 6 to 8 which are divided
into three categories of (1) Science and
Maths (2) Social Science and (3) Languages.
The Rules of transfer of teachers/Vidhya
Sahayak in lower primary section and upper
primary section of schools are framed
pursuant to coming into force of Right to
Education Act, 2009 and as per the
provisions of the said Act, the strength of
the teachers in the lower primary section
i.e. standard 1 to 5 and upper primary
section i.e. standard 6 to 8 is determined on
the basis of number of students and thereby
the sanctioned post of each school was
required to be decided as on 30th
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September and to inform such set up as per
teacher/student ratio before 31st October by
each school.
iv) Rule 10 of the Government Resolution
dated 23.05.2012 of Chapter Ka(A) refers to
the priority to be given for transfer to
widow, physically disabled or teacher couple
and member of Valmiki Samaj.
v) Prakran Kh(Chapter- B) refers to the
transfer of the surplus teachers. Rule 3 of
Prakran KH(B) refers to the method of
considering the surplus teacher and
stipulates that the teacher who is the
junior-most in the school from the date of
entry in the school, is to be considered for
declaring the surplus teacher.
vi) By Government Resolutions dated
18.2.2014 and 26.10.2020 the rules framed
under Government Resolution dated
23.5.2012 were amended for the purpose of
transfer. vii) By Government Resolution
dated 26.10.2020, Rule (4) of Prakran Kh(B)
which was amended by Government
Resolution dated 18.2.2014 pertaining to the
teachers who are not qualified to teach in
standard 6 to 8 of upper primary section and
when such teachers are declared as surplus
then junior-most teachers, while considering
all teachers from standard 1 to 8 as a one
unit, were to be transferred. Such provision
was altered and by Government Resolution
dated 26.10.2020, two separate seniority
lists of the teachers of standard 1 to 5 of the
lower primary section and for standard 6 to
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8 of upper primary section was required to
be maintained and the teacher who is junior-
most in lower primary section seniority list
is to be considered for declaring surplus
teacher and similarly teacher who is junior-
most in the seniority list of upper primary
section of standard 6 to 8 is to be
considered for declaration of surplus
teachers and at the time of transfer of
surplus teachers, such surplus teachers
having qualification to teach in standard 1 to
5 and standard 6 to 8 are to be transferred
as per their qualification on the vacant post.
Several other stipulations also were
amended pertaining to Rule (4) of Prakran
Kh(B).
19. In view of the above Rules which are
relevant for deciding the controversy arising
in these petitions, in facts of the cases of
individual petitioners, they were transferred
from their respective school either on the
ground that the petitioners were declared as
surplus pursuant to the aforesaid
resolutions or in some cases as option was
exercised by the concerned petitioner.
20. The petitioners were considered as
surplus teachers considering their
appointment in upper primary section of
standard 6 to 8 in the seniority list
maintained by the respective schools
considering the date of entry in upper
primary section.
21. Thus the seniority list of standard 1 to 5
and that of standard 6 to 8 was prepared on
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the basis of Government Resolution dated
26.10.2020 without considering the Rule 3
of Chapter-Kh(B) of Government Resolution
dated 23.5.2012 which stipulates that for
the purpose of declaring surplus teacher,
date of appointment in particular school is
required to be considered. Therefore, the
date of appointment of the petitioners in the
respective schools is required to be
considered and not the date when the
petitioners were allotted teaching work in
upper primary section of standard 6 to 8.
22. Thus the respondents have committed
an error in preparing the seniority list for
standard 1 to 5 and that for standard 6 to 8
as per Government Resolution dated
26.10.2020 which cannot be permitted in
view of Rule 3 of Chapter Kh(B) of the
Government Resolution dated 23.5.2012.
23. In that view of the matter, the
petitioners who have been transferred by
impugned transfer orders, which order is
not yet implemented due to pendency of
these petitions, cannot be sustained and are
hereby quashed and set aside. The
petitioners are required to be considered in
seniority list for standard 6 to 8 as per their
date of appointment in the respective
schools and therefore, in the next camp,
respective schools are required to consider
the status of the petitioners accordingly and
declare the petitioners as surplus or
otherwise after considering the seniority of
the petitioners with effect from the date of
their respective appointments in the said
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school."
24. Sub-Clause (6) of Clause (K) of the Resolution
provided that the transfers shall be done once in
a year during the summer break. Whereas the
surplus camps would be held during the Diwali
break.
25. Clause (GH) dealt with inter/intra district
transfer. The relevant clauses of the policy
provided that 40% of the vacancies can be filled
in through district transfers. 50% of these
vacancies were to be filled in by giving priority to
widows, physically challenged etc whereas the
remaining 50% could be filled in the basis of
seniority. Therefore seniority was the criteria
adopted for filling in these posts.
26. All applications were to be registered in the
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Transfer register. The seniority list for each
category is to be prepared on the basis of length
of service counting their initial date of entry in
the District.
27. Sub-Clause (10) of Clause (GH) states that only
after the year wise seniority list is prepared for a
year by the concerned officer that the next year's
seniority list can be operated. Sub-Clause(11)
states that for intra/inter district transfer the
applications made by the teachers will be
considered to be final and for the purpose of
seniority a year-wise register is required to be
maintained.
28. The Resolution dated 07.09.2013 clearly and
explicitly stated that for the purpose of seniority,
the same would be counted from the school from
which the option is exercised.
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
29. Therefore what is evident on reading the
conditions and clauses of the Government
Resolution dated 23.05.2012 is that for the
purposes of considering the cases for inter/intra
district transfers the date of initial appointment
in the school was the relevant date that was
considered and that continued to be even if a
primary teacher of the lower division opted and
migrated to the upper primary division.
30. From a communication obtained under the RTI
Act which was addressed to the Government
Pleader, High Court of Gujarat what is apparent
is that in the said communication it is clearly
stated an upper division primary teacher after
exercising the option would be placed in the
seniority list as per the date of initial
appointment.
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
31. The relevant clauses which have been brought
under challenge of Government Resolution dated
01.04.2022 are as under:
D-12- As per the provisions of this Resolution
the teachers appointed under the District/Nagar
Prathmik Shikshan Samitis either by direct
selection or promotion their dates of initial
appointments shall be treated as the dates on
their dates of joining. When they are transferred
to other districts or Nagar Shikshan Samitis
Their dates of joining be considered. In the case
of those Upper Primary Teachers who have given
options the relevant date shall be the the dates
of their options as their dates of entry in service.
J-5- The option to come over to the Upper
Primary Section shall be treated as a transfer.
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Therefore from the school no applications for
mutual transfer shall be entertained for 3 years
and no application for inter/intra district transfer
shall be entertained for 5 years.
L-4- This clause provides the Transfer Register
shall in case of Lower Primary Teachers shall be
prepared on the basis of date on entry and in the
case of Upper Primary Division the same shall be
on the basis of dates of option and separate
seniority lists will be prepared and as far as
Upper Primary Division teachers are concerned
their seniority shall be computed on the basis of
the dates of options.
32. The justification of the State in bringing these
clauses whereby the seniority is modified to that
of the date of exercising options and not as per
the date of entry in the school is that two
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sections namely lower and upper primary are
different, their qualifications are different. If the
instances that are set out in Annexure-B chart of
the petitioners of Special Civil Application
No.8667 of 2022 is seen then the applicants who
have made applications and were placed in the
seniority based on their date of entry if are
reckoned from the date of exercising option then
it shows that the past service rendered by those
teachers and their applications will now not be
considered on the basis of their initial
appointments but by the date of options and
therefore their entire past service is wiped out.
The argument by the State that these provisions
do not disturb their seniority in the cadre and
that their pay etc is protected is something that
is not disputed. Working of the applications
based on the new policy indicated that when a
teacher in the lower primary section made an
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
application and opted to get into the upper
primary division,the policy of the Government
Resolution dated 23.05.2012 provided that the
concerned optee's seniority shall be counted
from the date of joining the school at the first
instance and not from the date of option. The
purpose behind considering the date of initial
appointment as the date of application for
inter/intra district transfer was to enable the
teacher to make an application for transfer as
such an option was given once in the entire
service career of the teacher. That consideration
is now postponed on the basis of an adverse
input by postponing that consideration from the
date of joining the school at the first instance to
the date of option of coming over to the upper
primary section.
33. It would be relevant to reproduce the relevant
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
observations of this Court in this context as
observed in Special Civil Application No.18313 of
2016 wherein the Court considered the policy
dated 23.05.2012 and held as under.
"6. It is an admitted fact that application
was made by the petitioner on 19th
December, 2013. The reason that the
petitioner was 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
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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. Non-
consideration 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
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the basedate. In the event, 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."
34.Moreover reading the Resolution dated
01.04.2021 and the relevant provisions of the
Government Resolution dated 23.05.2012 which
this Resolution seeks to replace indicates that
the service condition i.e. the right to be
considered for transfer based on the date of
seniority from the date of initial appointment is
wiped out with retrospective effect. Though the
Government Resolution dated 01.04.2022 by the
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
language in the end part of the body of the
resolution indicates that it shall be applicable
prospectively in fact what is does is operate
retrospectively and to the detriment of the
Petitioners.
35.It will be relevant to reproduce Para 26 of the
decision of the Supreme Court in the case of
S.B.Patwardhan (supra) which reads as under:
"26. It is common ground that except the
Bombay Rules dated September 21, 1939
and the Gujarat Notification dated August
21, 1965 the rest of the rules are in the
nature of executive instructions. The Rules
of 1941, 1960, 1963, 1965 and 1970 were
not framed by the State Government
concerned in the exercise of constitutional
or statutory power. The Rules of 1960 and
1970 were issued "By order and in the name
of the Governor," but that does not lend
support to the construction faintly
suggested on behalf of the direct recruits
that the two sets of rules must be deemed to
have been made under art. 309 of the
Constitution. All executive action of the
Government of a Stale is required by art.
166 of the Constitution to be taken in the
name of the Governor. The appeals have
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therefore to be disposed of on the basis that
except for the Bombay rules dated
September 21, 1939 and the Gujarat
Notification dated August 21, 1965 the
remaining rules, whether of recruitment or
of seniority, are in the nature of executive
instructions. These instructions, unlike rules
regulating recruitment and conditions of
service framed under the proviso to art. 309
of the Constitution or s. 241(2)(b) of the
Government of India Act, 1936, cannot have
any retrospective effect."
36.Paras 31 and 33 of the decision in the case of
State of Bihar and Ors. V. Shyama Nandan
Mishra rendered in Civil Appeal No.7364 of
2014 reads as under;
"31. Next, let us test the impugned action of
the Government on the anvil of the Doctrine of
Legitimate Expectation. The notification
(23.06.2009) besides being legally untenable,
would also deny the substantive legitimate
expectations, the respondents nurtured, as
members of the government schools in the
BSES cadre. The denial is particularly glaring
in the absence of promotional avenues for the
respondents to the controlling/supervisory
posts in the administrative wing of the
education department. The respondents, in
course of their service as +2 Lecturers, would
reasonably expect to occupy the higher position
in the department, depending upon their inter-
se seniority in the common seniority list, but
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
the Government action, restricting movement
through artificial sub-grouping of +2 Lecturers
with teachers of nationalized schools, have
unreasonably belied their expectation. This
would suggest that the respondents were led
up the garden path by the appellants.
...
...
33. Another facet of denial of legitimate
expectations is underscored by the Court of
Appeal of England and 9[1990] 1 W.L.R 1545
Wales in the seminal case of Coughlan10,
where the Court preferred to use abuse of
power as one of the criteria for testing whether
a public body could resile from a prima facie
legitimate expectation. In the Court's opinion, if
the government authority induced an
expectation which was substantive, the
upsetting of that expectation, through
departure from the expected course of action in
the absence of compelling public interest,
would be so unfair, that it would amount to
abuse of power. In the present case, the abuse
of power is discernible in the State's disparate
decision in encadring the +2 lecturers with the
teachers of nationalized schools,
notwithstanding the contrary representation
through the 1985 notification which created the
+2 lecturer posts and the 1987 advertisement
under which, the respondents entered service.
Such manifest departure from the projected
course smacks of arbitrariness and the
government action, to selectively protect the
interest of the BES 10R v. North and East
Devon Health Authority Ex p. Coughlan, [2001]
QB 213 cadre, does not conform to rules of
justice and fair play."
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
37.The stand of the State that no vested right
accrues as transfer is an incidence of service.
Several decisions have been relied upon by the
learned Government Pleader in support of these
submissions.
38.However what is lost sight of that though
transfer is an incident of service and an
employee is bound by that condition of service,
in the facts on hand when offered to make an
application for transfer at the relevant time, the
teacher is informed that the Application will be
considered from the date of his/her joining. Now
by virtue of the relevant clauses in the
Government Resolution dated 01.04.2022 such
consideration of transfer are postponed by not
taking the relevant date of applications at first
instance but from the date of options to come
over to the upper primary sections.
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39.A right to have the application for transfer on the
date of first instance which is an accrued right is
taken away. Even by virtue of the clauses is that
though the right to make such application is once
in the entire service tenure now such
applications are not to be made for 3/5 years
once having opted to stay in upper primary
section.
40.What is evident therefore is that the Government
Resolution dated 01.04.2022 indicates that the
right of a teacher to submit an application for
intra/inter district transfer is to be counted from
the date of seeking option to come over from
lower primary section to upper primary section
and not from the date of joining the school in the
first instance. It is obvious that service
conditions pertaining to seniority are altered. In
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such a manner that the entire past service
rendered by the employee is wiped out. Transfer
may not be a vested right but teachers are
entitled to inter/intra district transfer only once
during the entire service period and this is
sought to be altered to the detriment of the
petitioner.
41.In the case of Chairman Railway Board vs.
C.S.Rangadhamaiah (supra) the Supreme
Court held as under:
"24. In many of these decisions the
expressions "vested rights" or "accrued
rights" have been used while striking down
the impugned provisions which had been
given retrospective operation so as to have
an adverse effect in the matter of promotion,
seniority, substantive appointment, etc. of
the employees. The said expressions have
been used in the context of a right flowing
under the relevant rule which was sought to
be altered with effect from an anterior date
and thereby taking away the benefits
available under the rule in force at that
time. It has been held that such an
amendment having retrospective operation
which has the effect of taking away a benefit
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
already available to the employee under the
existing rule is arbitrary, discriminatory and
violative of the rights guaranteed under
Articles 14 and 16 of the Constitution. We
are unable to hold that these decisions are
not in consonance with the decisions in
Roshan Lal Tandon (supra), B.S. Yadav
(supra) and Raman Lal Keshav Lal Soni &
Ors., (supra)."
42.The Court has examined the validity of the
clauses as under only which are considered and
set aside namely Clause D(12)/J(5) and L(4)
respectively.
43.On all these counts therefore the Clauses of the
Government Resolution dated 01.04.2022 namely
Clause No.D.(12), J(5) and L(4) are held to be
bad in as much as they are violative of Article 14
of the Constitution Of India and also bad as they
operate retrospectively to take away the vested
rights of the Petitioners by wiping out their past
seniority for consideration of their applications
C/SCA/8667/2022 CAV JUDGMENT DATED: 20/09/2022
for inter/intra district transfer.
44.The aforesaid offending clauses of the
Government Resolution dated 01.04.2022 are
accordingly quashed and set aside. Petitions are
allowed to the aforesaid extent.
(BIREN VAISHNAV, J)
FURTHER ORDER
Ms.Manisha Lavkumar learned Government
Pleader for the State requested for stay of this
judgment. The request is rejected.
(BIREN VAISHNAV, J)
ANKIT SHAH
