Gujarat High Court
Patel Amitkumar Dhanjibhai vs State Of Gujarat on 28 September, 2022
Bench: Biren Vaishnav
C/SCA/15272/2020 JUDGMENT DATED: 28/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15272 of 2020
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 AMITKUMAR DHANJIBHAI
Versus
STATE OF GUJARAT
================================================================
Appearance:
MR GAURAV CHUDASAMA(5660) for the Petitioner(s) No. 1
MR SOAHAM JOSHI, AGP for the Respondent(s) No. 1
MS NIYATI V VAISHNAV(6168) for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 1,2,4
================================================================
CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 28/09/2022
ORAL JUDGMENT
1. 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
C/SCA/15272/2020 JUDGMENT DATED: 28/09/2022
Government Pleader waives service of notice of Rule for
respondent Nos.1 and 2.
2. 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 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.
3. 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
C/SCA/15272/2020 JUDGMENT DATED: 28/09/2022
posted at his mother school at Nasmed, the petitioner was
posted at Dabhla Primary School.
4. 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.
C/SCA/15272/2020 JUDGMENT DATED: 28/09/2022
5. 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 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.
6. Rejoinder has been filed to the reply.
7. Considering the factual aspects on the case on hand, it is
C/SCA/15272/2020 JUDGMENT DATED: 28/09/2022
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.
8. 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/15272/2020 JUDGMENT DATED: 28/09/2022
9. 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.
10. The petition is allowed. Rule is made absolute to the
aforesaid extent. Direct Service is permitted. No order as to
costs.
(BIREN VAISHNAV, J)
VATSAL S. KOTECHA
