Gujarat High Court
Gondaliya Vinodray Harjivanbhai vs State Of Gujarat on 11 July, 2025
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
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C/SCA/9498/2025 JUDGMENT DATED: 11/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9498 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 9495 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 9497 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 9082 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 9177 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 9186 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 8753 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 8755 of 2025
With
R/SPECIAL CIVIL APPLICATION NO. 9043 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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Approved for Reporting Yes No
✓
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GONDALIYA VINODRAY HARJIVANBHAI & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
In SCA Nos. 9498/2025, 9495/2025, 9497/2025
MR GAURAV CHUDASAMA(5660) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,53,54,6,7,8
,9
MR ADITYA PATHAK, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1,2
MR MANISH J PATEL(2131) for the Respondent(s) No. 6
In SCA Nos.9082/2025, 9177/2025, 9186/2025, 8753/2025, 8755/2025,
9043/2025
MR SHALIN MEHTA, LD. SR. ADV. with MR GAURAV MEHTA for the
Petitioners
MR ADITYA PATHAK, ASST. GOVERNMENT PLEADER for the Respondent
- State
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 11/07/2025
ORAL JUDGMENT
1. Heard learned Senior Advocate Mr. Shalin Mehta with
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learned advocate Mr.Gaurav Mehta and learned advocate
Mr.Gaurav Chudasama for the petitioners and learned AGP
Mr. Aditya Pathak for the respondent State.
1.1. At the outset, it requires to be noted that having made
extensive arguments, learned Advocate Mr.Gaurav
Chudasama and learned Advocate Mr.Gaurav Mehta seeks
permission to withdraw the present petitions. The same is
opposed by learned Assistant Government Pleader Mr.Aditya
Pathak appearing on behalf of the respondent - State.
2. It appears to this Court that the issue involved in the
present petitions is not limited to the petitioners only and
whereas, the issue involved is with regard to a class of
persons namely those who have received the benefit of inter-
district transfer and whereas, to ensure that there is no
further litigation on this aspect, to this Court, having heard
learned advocates for the respective parties, it would be
appropriate to pass an order so as to ensure that the issue
receives a quietus.
3. By way of these petitions, the petitioners have inter alia
sought to question an administrative instruction dated
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28.05.2025 by the Education Department, more particularly
whereby the Education Department has inter alia instructed
the Director of Primary Education to follow the new working
pattern whereby in case of giving charge of head teacher,
seniority is to be considered from the date of joining the
department and not from the date of joining the district.
3.1. It appears that the petitioners before this Court are the
teachers in primary schools who have received the benefit of
inter-district transfer and whereas, as per the policy of the
State Government vide various resolutions, lastly being
Government Resolution dated 11.05.2023, in case of inter-
district transfer at the request of the teacher concerned, the
concerned teacher would lose her seniority and would be
placed in the bottom of the seniority list in the concerned
district as well as in the school. The petitioners having been
transferred out of the district of their original appointment.
3.2. It is the case of the petitioners that the petitioners are
working in primary schools which do not have a confirmed
set-up of head teachers. It appears that confirmed set-up of
head teachers is available only for schools having strength of
more than 150 insofar as schools having standard 1 to 5 are
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concerned and for standard 6 to 8, minimum of more than 100
students are required for a permanent set-up of head teachers
and whereas, the petitioners are working in schools less than
150 or 100 students as the case may be, where there is no
permanent set-up.
3.3. It is the case of the petitioners that vide the instructions
impugned in the present petitions, the Education Department
of the State has instructed the Director of Primary Education
to give charge of head teacher to teachers based upon their
seniority in the date of joining in service as against their
present seniority. The petitioners contend that since they are
the junior most in the seniority list, the responsibility of
accepting the charge of head teachers should not be fastened
upon them, more particularly the petitioners contending that
in terms of grant of benefits, the petitioners being placed at
the bottom of the seniority list, they should not be given any
additional responsibility.
4. Learned Senior Counsel Mr.Mehta as well as learned
Advocate Mr.Chudasama appearing on behalf of the
respective petitioners would take this Court extensively
through instructions issued vide communication dated
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28.05.2025 and would submit that the instructions inter alia
make it mandatory for the teachers i.e. like the present
petitioners, who may be higher in the overall seniority, but
lower in the seniority after availing of inter-district transfer to
be given the charge of head teacher upon the existing
incumbent being relieved for various reasons. Learned Senior
Advocate as well as learned Advocate would submit that such
a responsibility ought not to be given to the present
petitioners since in the seniority list of the District as well as
in the school, the petitioners would be at the bottom.
4.1. It is submitted that while for the purpose of giving
charge of head teachers, the date of entry in service is being
taken into consideration, whereas, insofar as in case of over
set-up, the date of joining the school concerned would be
treated as the appropriate date. It is submitted that such dual
policy could not be adopted by the State Authorities. It is
further submitted on behalf of the petitioners that while there
were instructions hereinbefore which did not make it
mandatory for the teachers who have joined after getting the
inter-district transfer to take up the post of head teachers,
after the instructions in question, it has become mandatory
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for the teachers like the petitioners to accept such handing
over of charge.
4.2. It is submitted that in case of giving charge of head
teachers, while the actual seniority of the petitioners i.e.
seniority with effect from the date of entry in service is taken
into consideration whereas the date of entry in service is not
being taken into consideration for any other purpose including
for promotion etc. Thus submitting, learned Senior Advocate
and learned Advocate would assail the decision of the State
Government.
5. On the other hand, the present petitions are vehemently
opposed by learned AGP Mr.Pathak on behalf of the
respondent - State.
5.1. Learned AGP would submit that as such, the instruction
dated 28.05.2025 is not an instruction whereby the petitioners
are being permanently given any charge. It is submitted that
the instruction itself envisage that the petitioners would be
handed over charge of head teachers and whereas, it would
be an interim measure till persons are appointed on regular
basis. Learned AGP would further submit that in any case, the
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petitioners are not able to show any prejudice whatsoever
which occurs to them on account of the charge being given to
them. It is submitted by learned AGP that as such, insofar as
the aspect of over set-up, promotion and grant of any other
benefits is concerned, the petitioners, knowing very well that
upon being granted inter-district transfer at their own
request, they would lose their seniority, they cannot now turn
around under the guise of questioning the handing over of
charge of head teacher to the petitioners and contend that if
the charge of head teachers is handed over to them,
consequently, the petitioners may be considered amongst
others for the benefits of seniority or not being considered as
a surplus upon exercise of over set-up being considered or for
promotion etc.
5.2. It is submitted by learned AGP that while in normal
course, the petitioners are, as per the policy of the State
Government, placed in bottom of the seniority list, whereas,
the exercise contemplated vide instruction dated 28.05.2025
is an administrative exercise for administration convenience
and whereas, since the petitioners are not able to show any
genuine prejudice which occurs to them on account of the
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same, these petitions may not be entertained.
6. Heard learned advocates for the respective parties and
perused the documents on record.
6.1. At the outset, this Court craves leave to refer to
observations of the Hon'ble Supreme Court in case of
M.S.Sanjay vs. Indian Bank and others, reported in 2025
SCC OnLine SC 368. Paragraphs no.9 and 10 being relevant
for the present purpose, are being reproduced hereinbelow
for benefit:-
"9. It is well settled that interference by the Writ
Court for mere infraction of any statutory provision or
norms, if such in-fraction has not resulted in injustice
is not a matter of course. In the case of Shiv Shanker
Dal Mills v. State of Haryana reported in (1980) 2
SCC 437, the dealers in that case had paid market
fees at the increased rate of 3%, which was raised
from the original 2 per cent under Haryana Act 22 of
1977. The excess of 1 per cent over the original rate
was declared ultra vires by this Court in the case of
Kewal Krishna Puri v. State of Punjab reported in
(1980) 1 SCC 416. The excess of 1 per cent over the
original rate having been declared ultra vires,
became refundable to the respective dealers from
whom they were recovered by the Market Committee
concerned. The demand for refund of the excess
amounts illegally recovered from them not having
been complied with, the dealers filed Writ Petitions
under Article 32 and Article 226 of the Constitution
for a direction to that effect to the Market Committee
concerned. The Market Committees contended that
although the refund of the excess collections might
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be legally due to the dealers, many of them had in
turn recovered this excess percentage from the next
purchasers. While disposing of the petition and laying
down guidelines, this Court held as under:
"Article 226 grants an extraordinary remedy,
which is essentially discretionary, although
founded on legal injury. It is perfectly open for
the court, exercising this flexible power, to pass
such order as public interest dictates and equity
projects. Courts of equity may, and frequently do,
go much further both to give and withhold relief
in furtherance of the public interest than they are
accustomed to go where only private interests
are involved. Accordingly, the granting or
withholding of relief may properly be dependent
upon considerations as of public interest."
10. It has been rightly observed that legal
formulations cannot be enforced divorced from the
realities of the fact situation of the case. While
administering law it is to be tempered with equity
and if the equitable situation demands after setting
right the legal formulations not to take it to the
logical end, the High Court would be failing in its
duty if it does not notice equitable consideration and
mould the final order in exercise of its extraordinary
jurisdiction. Any other approach would render the
High Court a normal Court of Appeal, which it is not.
It is a settled principle of law that the remedy under
Article 226 of the Constitution of India is
discretionary in nature and in a given case, even if
some action or order challenged in the petition is
found to be illegal and invalid, the High Court while
exercising its extraordinary jurisdiction thereunder
can refuse to upset it with a view to doing substantial
justice between the parties. "
6.2. From the above quoted portion, it would clearly appear
that the law with regard to exercise of writ jurisdiction being
that the same is an extraordinary remedy which is
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discretionary and the writ Court would not interfere for
infraction of a statutory provision or norms if such infraction
has not resulted in any injustice. The Hon'ble Supreme Court
has further observed that the legal formulations could not be
enforced divorced from the reality of the fact situation of a
case and whereas, the Hon'ble Supreme Court has further
observed that in a given case, even if some action or order
under challenge is found to be illegal or invalid, the High
Court would be well justified in refusing to interfere in
exercise of its extraordinary jurisdiction with a view to doing
substantial justice between the parties.
7. While this Court is of the considered opinion that there
is no infraction whatsoever of any statutory provisions or
norms as could be established by the petitioners herein, even
otherwise, to this Court, it would appear that the presence is
not a case which would require interference at the ends of
this Court more particularly in exercise of discretionary writ
jurisdiction under Article 226 of the Constitution of India.
7.1. To this Court, the petitioners are not able to
demonstrate any justifiable prejudice whatsoever more
particularly upon the State Authorities taking a decision that
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the teachers who are senior by virtue of their date of
appointment should be given charge of head teachers as
against teachers who might be seniors in the school or
district. To this Court, it is a completely unjustifiable stand
which is taken by the petitioners herein who have worked for
number of years as the employees of the State Government to
state that they would not be open for accepting a
responsibility nay an honour which is bestowed upon them by
the State Government. In a school where otherwise the
petitioners having accepted an inter-district transfer are
placed at the bottom of the seniority list, the petitioners are
given an opportunity to serve the government as an In-Charge
Head Teacher and whereas, the petitioners have thought it fit
to approach this Court for issuance of a writ to declare that
the action of the State Government is bad in law. To this
Court, it would appear that the petitioners are those class of
persons who only fight for their rights without accepting any
responsibility whatsoever. To this Court, such conduct on the
part of the petitioners is required to be deprecated.
7.2. To this Court, it would appear that the State Government
to ensure that the administration of the schools does not
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suffer upon a head teacher vacating his position on account of
the retirement, transfer etc. are giving charge of the said
position to a person who has otherwise worked in the system
for more number of years and who would be more
experienced, who otherwise in the normal scheme of things
would not be entitled. The petitioners would, in the normal
course of things, be senior as compared to teachers who are
already working in the school, yet, on account of the fact that
the petitioners have accepting the inter-district transfer, by
virtue of policy of the State Government, are placed at the
bottom of the seniority list, yet, the State requiring the
petitioners to use their experience to man the post of Head
Teacher In-Charge, to this Court, there is nothing illegal,
irregular or unjustifiable in the stand of the State.
7.3. To this Court, it would appear as noticed herein above,
that while there is no infraction of any statutory provision and
the petitioners could not establish any prejudice much less
any injustice, it would also appear that interfering in the
present set of petitions would lay down a wrong precedent
inasmuch as the petitioners who otherwise are government
servants and are required to follow the lawful instructions of
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the government authorities are trying to evade their
responsibilities.
7.4. Again, though such an argument would not have been
available, yet, the schools in which the petitioners are working
are not having large number of students and consequently,
large number of teaching and non-teaching staff. As noted
hereinabove, the schools concerned are comparatively smaller
schools with less than 150 students if the school is for class 1
to 5 and less than 100 if the school is for class 6 to 8. Thus,
the petitioners are trying to invoke the writ jurisdiction of this
Court questioning the decision of the State to give charge of
the head teacher to schools having such less number of
students, in other words, the burden on account of such
additional charge upon the petitioners being negligible.
8. To this Court, it would appear that interfering in the
present petition would be completely out of the place and
whereas, to this Court, it would appear that the present
petitions does not require this Court to exercise its
discretionary jurisdiction. To this Court, it would appear that
even if there were any instructions contrary to which the
State was acting, then also, the present petitions would not be
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required to be entertained and whereas, to this Court, since
nothing justifiable is being brought forth, no reason
whatsoever is shown for interference, hence, all the petitions
stand disposed of as rejected in limini.
(NIKHIL S. KARIEL,J)
Bhoomi
