PATEL CHINTAN RAMESHBHAI Vs. STATE OF GUJARAT
LAWS(GJH)-2013-7-130
HIGH COURT OF GUJARAT
Decided on July 03,2013

Patel Chintan Rameshbhai Appellant
VERSUS
STATE OF GUJARAT Respondents

JUDGEMENT

- (1.)By this Special Civil Application, 22 Primary Teachers of the State of Gujarat have challenged the new transfer policy dated May 23, 2012 adopted by the respondent as illegal, unjust, vague and against the provisions of Articles 14, 16 and 21 of the Constitution of India.
(2.)The case made out by the writ-petitioners may be summed up thus:
2.1 The petitioners are working under the respondent no.1 as Primary Teachers and have already completed the first five years' stagnation period. The spouses of the petitioners are also working as Primary Teachers and they have also completed the stagnation period of the first five years.

2.2 According to the present system of appointment, at the time of initial appointment, there is a fixed salary for five years as Vidhya Sahayak and thereafter, the designation of Primary Teacher has been conferred upon them and all the petitioners are now acting as Primary Teachers.

2.3 The government policy adopted in the year 2004 prescribes that when both the spouses are employed under the same master, (in this case, respondent no.2), they should be given preference for inter district transfer. The petitioners have applied for their inter district transfer according to the government policy, but till date, they have not been given any such transfer order. The 2004 Policy clearly gives a mandate that an opportunity of getting inter district transfer should be given according to the seniority of the teachers who are opting for such inter-district transfers, whereas, by virtue of the present Policy adopted in the year 2012, the said criterion of basic seniority has been ignored, as a result, those who are junior to the petitioners are getting edge over the seniors because of the new transfer policy. The aforesaid new policy, according to the writ-petitioners, is violative of Articles 14 and 16 of the Constitution of India as the guidelines introduced in 2012 Policy are arbitrary.

2.4 The main grievance of the petitioners is that after the introduction of the Right to Education Act by the Central Government, the Gujarat Government has introduced the concept of two sets of teachers; one is the lower Primary Teachers and the other is the upper Primary Teachers. A section of teachers who were working as the general Primary Teachers is now categorized as upper Primary Teachers on the basis of their option for teaching in the upper primary section, i.e., Standard-5 to Standard-8, while the other section of the teachers, who have opted for teaching in Standard 1 to Standard 4, are described as junior primary teachers. As there is huge number of vacancies of teachers in the upper standards, i.e. Standard-5 to Standard-8, the teachers who have opted for the upper primary section, are having more chances of getting inter district transfer in view of occurring of more number of vacancies, whereas, those teachers who have opted for the lower primary section, i.e., Standard-1 to Standard-4, in spite of their seniority, are unable to get inter district transfer order in view of less number of vacancies in the lower primary section.

2.5 According to the petitioners, both the lower Primary Teachers and upper Primary Teachers have the same qualifications, the same scale of pay and are appointed by virtue of the same process of selection, but when the turn of getting opportunity of inter district transfer arises, the seniority in the original cadre is given a go-bye and simply on the basis of the option in the upper primary section, those teachers are getting more opportunities for transfer because of huge number of vacancies in the upper primary section.

2.6 The petitioners further claim that though they have opted for the lower primary section, in view of the insufficient number of teachers in the upper primary section, they are even temporarily teaching the students of upper primary section, yet they are not getting the benefit of inter district transfer for the less number of vacancies occurring in the lower primary section.

2.7 This factor, according to the petitioners, is causing injustice and the Policy so adopted by virtue of 2012 resolution is, thus, violative of Articles 14 and 16 of the Constitution of India.

(3.)In order to appreciate the aforesaid contentions, it will be profitable to refer to sub-items 4,5,6 and 7 of the earlier transfer policy as well as the clauses 1 and 2 of the present transfer policy.
SUB-CLAUSES 4,5,6 AND 7 OF 2004 POLICY:

4. After preparing the seniority list of the applications received from the primary teacher as per the aforesaid facts on the basis of the date of entry in the service in the original District by the concerned District Primary Education Officer, all the applications shall be registered in the Register of the Inter District transfer and the receipt [year wise] showing the registration number mentioned in the inter district transfer register shall be immediately sent to the concerned teacher.

5. As regards the Inter District transfer, by preparing the year wise separate seniority list, the District Primary Education Officer shall register it serial-wise in the Inter district transfer register.

6. The posts which are to be filled up by way of inter district transfer as allotted by the Director shall be filled up from the aforesaid year-wise seniority list on the basis of seniority of the teachers.

7. After completing the seniority list of the concerned year, the appointments in connection with the inter district transfer shall be given from the seniority list of the next year."

CLAUSES 1 & 2 OF THE EXISTING POLICY OF 2012:

1. Out of the posts, which become vacant as on 1st June in the District, 40% of the posts shall be filled up by way of inter district transfer. Out of the posts which are to be filled by way of inter district, 50% posts shall be filled up through widow, handicapped, higher primary/primary teacher couple and the member of the Valmiki Society and the remaining posts shall be filled up on the basis of seniority by way of Inter District Transfer. If the teachers are not available for coming by way of Inter District then such posts shall be filled up by way of direct recruitment of the Vidyha Sahayak.

2. The pending applications out of the applications of the inter district transfer, which may have been registered in the transfer register of the concerned district, shall be divided into four divisions as mentioned in Chapter A[4]. The teacher who may have given an option for the division of higher primary education and which may have been accepted, shall be included in the same division and the date of original application in this regard shall be kept as it is."



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