Shivraj Mohan Charan vs State Of Gujarat

1 In all these petitions, challenge is to the transfer orders passed by the respondent State, by which, the Head Teachers had been sought to be transferred by virtue of a Government Resolution dated 09.10.2019. The transfer is sought to be made on the ground that in view of the norms of transfer laid out in the aforesaid government resolution, since the strength of the students from class 1 to 5 and 6 to 8 has gone below 250, the petitioners - Head Teachers are declared surplus, and therefore, the exigency to transfer them has arisen. Page 1 of 5 Downloaded on : Tue Jan 07 22:28:59 IST 2020

advocate appearing for the petitioners in respective petitions. Mr.Pujara, learned advocate for the petitioners, has invited my attention to the schedule to the Right to Children to Free and Compulsory Education Act, 2009, by which, the Act contemplates one head teacher each for class 1 to 5 and 6 to 8 respectively. For class 1 to 5, the students strength is to be 150 and for that of 6 to 8, it has to be above 100. 3 Rule 4(b) of the Right of the Children to Free & Compulsory Education Rules, 2010, is pressed into service to show that the strength of 150 and 100 students respectively has to be computed separately. Rules similar thereto have been framed by the State Government at page 158, the relevant Rule is 17(3)(b). The submission of Mr.Pujara, learned advocate for the petitioners is that, though the computation of the figure has to be made separately, the impugned order of transfer is based on the Government Resolution dated 09.10.2019, which contravene the provisions of the Rule, by which, what is sought to be computed is taken contiguously for both class i.e. 1 to 5 and 6 to 8. This apparently prima facie seems to be in contravention of the Act of the provisions of the Right to Education Act and Rules. Page 2 of 5 Downloaded on : Tue Jan 07 22:28:59 IST 2020

C/SCA/329/2020 ORDER 4 At the time when the petitioners were appointed as Head

Teachers through direct selection, what was in force was the Government Resolution dated 27.08.2012. Amongst other things, it contemplated that the service conditions as far as transfer is concerned, would be governed by the Government Resolution dated 25.10.2000. This was the service condition governing the petitioners when they were appointed. This condition has now been unilaterally changed by the resolution impugned, pursuant to which the transfer are made is also under challenge. Alternatively it is submitted that the Government Resolution of 27.08.2012 at page 72 makes that apparent.

5 Mr.Utkarsh Sharma, learned Assistant Government Pleader, would contend that there is a specific statement made in the petition that in the schools from which they are sought to be transferred, the sanctioned strength is below 150 or 100 as the case may be, and therefore, admittedly the petitioners in principle are not objecting to the transfer in the event the strength in the other schools is appropriate for transfer. Considering the fact that at the time when the petitioners were appointed, there was no condition as so contemplated in the Government Resolution of 09.10.2019, Page 3 of 5 Downloaded on : Tue Jan 07 22:28:59 IST 2020 C/SCA/329/2020 ORDER prima facie, I do not agree with the submission made by the learned Assistant Government Pleader.

6 Mr.Utkarsh Sharma, learned Assistant Government Pleader, would press into service the order of the Division Bench passed in Letters Patent Appeal No. 1884 of 2019 and allied matters and submitted that though the learned Single Judge had granted the order of status quo for the camps not to be held, the Division Bench of this Court in the above said Letters Patent Appeal filed by the State, permitted such transfers to be implemented. However, it should be noted that, while doing so, the Division Bench did observe that if the teachers are adversely affected by the result of the camp, they are free to challenge the orders it they adversely affect the service career and service condition. Having recorded as above that it does affect their service conditions, I deem it fit to pass the interim order.

7 Prima facie having considered the submissions in consonance with the Rules and the Act, when the petitioners were appointed as Head Teachers by virtue of their direct selection, their conditions contemplated that transfer, though an exigency, would be governed by the Resolution of Page 4 of 5 Downloaded on : Tue Jan 07 22:28:59 IST 2020 C/SCA/329/2020 ORDER 25.10.2000, which is now sought to be changed under the pretext of the sanctioned strength falling below 250. This computation of the sanctioned strength of 250 being taken conjointly for standards 1 to 5 and 6 to 8, when rules provides that the strength should be considered separately. 8 Prima facie, the orders of transfer, therefore, need to be stayed. Notice returnable on 23.01.2020. In the meantime, there shall be ad-interim relief restraining the respondent from implementing the orders of transfer dated 02.01.2020 and 01.01.2020 in respective petitions. Direct service, today, is permitted.

(BIREN VAISHNAV, J) Bimal Page 5 of 5 Downloaded on : Tue Jan 07 22:28:59 IST 2020