Gujarat High Court
Solanki Jashvantji Somaji vs State Of Gujarat on 27 September, 2024
Author: A. S. Supehia
Bench: A.S. Supehia, Gita Gopi
NEUTRAL CITATION
C/LPA/1420/2024 ORDER DATED: 27/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1420 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 13309 of 2024
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2024
In R/LETTERS PATENT APPEAL NO. 1420 of 2024
With
R/LETTERS PATENT APPEAL NO. 1417 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 13323 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024 In R/LETTERS
PATENT APPEAL NO. 1417 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 13323 of 2024
With
R/LETTERS PATENT APPEAL NO. 1421 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 13989 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024 In R/LETTERS
PATENT APPEAL NO. 1421 of 2024
In
R/SPECIAL CIVIL APPLICATION NO. 13989 of 2024
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SOLANKI JASHVANTJI SOMAJI & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR KB PUJARA(680) for the Appellant(s) No. 1,10,11,12,13,14,15,16,
17,18,19,2,20,21,22,23,24,25,26,3,4,5,6,7,8,9
MR SAHIL B. TRIVEDI, AGP for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 27/09/2024
COMMON ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. All these Letters Patent Appeals emanate from the
judgment and order passed by the learned Single Judge.
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C/LPA/1420/2024 ORDER DATED: 27/09/2024
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While admitting the captioned writ petitions, the learned Single
Judge has admitted and kept the matters for further hearing on
29.10.2024.
2. The request of the appellants for accepting their
application in view of the advertisement dated 01.09.2024 has
been rejected.
3. At the outset, learned advocate Mr. K. B. Pujara, has
reiterated the contentions, which have been made before the
learned Single Judge. He has pointed out the definition of "Old
Teacher", as incorporated in the Notification dated 01.08.2024,
and has submitted that the present appellants cannot be
barred from participating in the process undertaken vide
advertisement dated 01.09.2024.
4. Learned advocate Mr.Pujara has reiterated that the
service of the appellants is governed by the provisions of the
Gujarat Secondary and Higher Secondary Education Act, 1972
and right from beginning, though they are serving as Teachers
under the Tribal Development Department, they cannot be
barred from participating in the process undertaken by the
State Education Department.
5. Learned advocate Mr.Pujara has further contended that
earlier in the year 2016 also, the appellants were allowed to
participate in the advertisement, however the same was
scraped in order to give chance to large number of teachers.
6. Learned advocate Mr.Pujara has further referred to the
impugned Government Resolution dated 01.08.2024 and has
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C/LPA/1420/2024 ORDER DATED: 27/09/2024
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submitted that the appellants fall within the definition of "Old
Teachers", as envisaged in the Notification dated 01.08.2024,
more particularly Clause 2(1), and hence, the Education
Department cannot debar them from any process, which is
undertaken for other teachers.
7. Learned advocate Mr. Pujara has further submitted that in
case, the process is further allowed, and they are not allowed
to fill up the applications, and ultimately the appellants
succeed in the writ petition, the same would be a futile
exercise as all the 4000 posts would be filled up and hence, it
is submitted that in the interest of justice, the appellants may
be allowed to fill up the application today by physical mode so
that their claim or right may not be jeopardized.
8. While referring to the observations recorded by the
learned Single Judge, it is urged that the learned Single Judge
ought to have allowed the interim relief, more particularly,
when the appellants would not be claiming any equity on the
basis of such filing of the application.
9. Per contra, learned Assistant Government Pleader has
submitted that the main matters are already listed on
29.10.2024 and till then the process is not going to be over
since the authority is required to examine more than 4000
applications. It is submitted that right from the appointment
and till today, the service conditions of the appellants are
governed by the instructions issued by the Tribal Development
Department. It is submitted that all the appellants are serving
under the Ashram Shalas in the Secondary and Higher
Secondary Schools, which is governed by the Rules and
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Regulations of the Tribal Development Department and the
present exercise is undertaken by the Education Department,
more particularly for the teachers, who are serving in
registered Private Secondary and Higher Secondary School,
and who do not have transfer policy. It is submitted that the
entire exercise is undertaken for regulating the transfers, and
not the appointments. It is also submitted that the seniority of
the appellants, who worked under the Tribal Development
Department and Education Department is different and hence,
the appellants have no right to claim their transfer on the post
of the teachers, who fall under the Education Department.
Thus, it is urged that the learned Single Judge has precisely
rejected to grant the interim relief by the impugned order and
the same may not be interfered with.
10. We have heard the learned advocates for the parties at
length.
11. The learned Single Judge has kept the writ petitions on
29.10.2024 for further hearing.
12. By the impugned order dated 25.09.2024, though the
matters are admitted and kept for hearing, the request of the
appellants to permit them to file their applications pursuant to
the advertisement dated 01.09.2024 has not been acceded to.
The learned Single Judge vide comprehensive order has
rejected the request by recording the rival submissions.
Ultimately, the learned Single Judge has held thus : -
"5. Considered the arguments and perused the documents
on record. It is pertinent to note that the
Notification dated 1.8.2024 issued by the Education
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Department, in Clause 2(1) clearly specifies that the
said resolution is restricted to the Old Teachers who
are covered under the definition of "Old Teacher" and
working in the Private grant-in-aid Secondary and
Higher Secondary Schools under the administration of
the Education Department. Further, this exercise of
transfer policy for the Teachers in the grant-in-aid
Secondary and Higher Secondary schools is termed as
recruitment since there is no transfer policy existing
for such employees in the Private grant-in-aid
Secondary and Higher Secondary Schools. The vacant
posts which are advertised for filling up by the Old
Teachers have been undertaken after receiving inputs
from the District Education Officer whereby such
vacant posts of Old Teachers have been identified.
Prima facie, all these posts which have been
identified for such recruitment are coming under the
administrative domain of the Education Department.
These posts are totally under the administrative
control of the Education Department.
6. It is also not disputed that the petitioners are
recruited and appointed in the Ashramshalas which are
under the administrative control of the Tribal
Development Department. Their recruitment and
appointment is also governed by the Tribal Development
Department. The said Tribal Development Department has
its own recruitment policy and appointment terms and
conditions. Further, the petitioners do not come under
the administrative control of the District Education
Officer, but they come under the administrative
control of the Tribal Development Officer. Vide GR
dated 4.3.1994 issued by the Tribal Development
Department, the administration of the Ashramshalas /
Uttar Buniyadi Ashramshalas was transferred from the
administrative control of the Education Department to
the Tribal Development Department and the Ashramshalas
are under the supervision of the Tribal Development
Department. The services of the petitioners are
governed under the separate Rules issued by the Tribal
Development Department. 7. The present exercise is
undertaken by the Education Department after receiving
the requisition from the District Education Officer
regarding the tentative vacancies in the Secondary and
Higher Secondary Schools under the administrative
control of the Education Department. The said exercise
is restricted only to such Old Teachers who are under
the administrative control of the Education
Department. No such exercise has been done in case of
Ashramshalas under the Tribal Development Department
which has separate hierarchy for administration of
Ashramshalas under the Tribal Development Department.
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In view of the observations made hereinabove, the
prayer for interim relief as prayed for to permit the
petitioners to participate in the present recruitment
is hereby rejected."
13. We do not find any infirmity or illegality in the order
passed by the learned Single Judge. It is also not in dispute
that the services of the appellants, who worked under the
Tribal Development Department and the services of the
Teachers, who work under the Education Department, operate
in different realm. Both have different seniority, and they
cannot be transferred from on each others posts. The entire
exercise is undertaken by the Education Department for those
teachers, who worked under their department and also for the
Private Higher Secondary Schools. It is a policy decision taken
by the State Government, in order to regulate the transfesr of
such teachers. The appellants, who worked under the Tribal
Development Department, cannot claim to be appointed /
transferred on the post of teachers of the Education
Department.
14. Until and unless, the appropriate policy decision is taken
by the State Government regulating the transfers /
appointment inter se, the appellants cannot, as a matter of
right, claim to be transferred or appointed on the post of
teachers under the Education Department. Thus, the present
appeals fail. The same are rejected.
15. We are constrained to pass such order since the learned
advocates appearing for the respective parties have made
their submissions. We are also alive of the fact that such
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observations may also affect the final outcome of the writ
petitions. However, all the rights and contentions of the
effective parties are kept open. The present observations are
only made so far as the refusal of interim relief is concerned.
The learned Single Judge shall accordingly decide the issue
raised in the writ petitions independent of the observations
made by us. It is also noticed by us that in fact, in the
captioned writ petitions, the appellants have assailed the
impugned Government Resolution dated 01.08.2024, which
regulates such transfers / appointments and it goes without
saying that in case, the appellants succeed and the impugned
Government Resolution is set aside, their rights can be
appropriately crystallized by giving appropriate directions by
the learned Single Judge.
16. All the connected civil applications also stand disposed of
accordingly.
17. Registry to place a copy of this order in each of the
connected matters.
(A. S. SUPEHIA, J)
(GITA GOPI,J)
MAHESH/S-06-02-05
