Prajapati Punambahen Ishvarbhai vs State Of Gujarat

A.S. Supehia, J

In the present writ petition the petitioner is seeking quashing and setting aside Clause-4 of Chapter-G of the Government Resolution dated 01.04.2022. A further direction is sought to direct the Government to extend the benefit as per the Government Resolution dated 21.01.2014 more particularly, Clauses 3 and 4 thereof and allow her to participate in the intra-district camps held for transfer.

The petitioner is claiming intra-district transfer i.e. from one Taluka to another Taluka within the district as per the earlier policy and since the application filed by the petitioner is not accepted by the respondent authorities for seeking transfer from one taluka to another within the district, the aforesaid Clause-4 of Chapter-G of the Government Resolution dated 01.04.2022 is challenged.

Learned advocate Ms.Pasi appearing for the petitioner has submitted that the aforesaid Clause-4 of Chapter-G of the Government Resolution dated 01.04.2022 only confines to transfer from one district to another district and transfer from one Taluka to another Taluka within the district is barred. She has further submitted that as per the earlier Resolution dated 21.01.2014, as per Clause 4 thereof, a teacher can seek inter as well as intra-district transfer, after completion of 10 years of service. She has further placed reliance on the order dated 09.11.2022 passed in Special Civil Application No.22254 of 2022 and has submitted that as per the observations made therein, the impugned order is premised on the Government Resolution dated 30.08.2017, whereas the case of the petitioner has been considered as per the Government Resolution dated 01.04.2022. She has submitted that the provision of the said clause is violative of Article 14 of the Constitution of India since the respondent authorities have created a class within a class. No further submissions are made.

Per contra, learned AGP, while placing reliance on the order dated 09.11.2022 passed in Special Civil Application No.22254 of 2022 has submitted that merely because the petitioner is seeking transfer from one Taluka to another Taluka within the district, the same cannot be made the basis to set aside the policy decision of the State Government. He has submitted that in the wisdom of the State authorities, the aforesaid policy, more particularly Clause-4 of Chapter-G was introduced so that Vidhya Sahayaks can request for intra-district transfer within 5 years of service instead of 10 years of service. It is submitted that in fact the said clause is in benefit of the teachers that they do not have to wait for 10 years to get transferred. He has submitted that the teacher, who is seeking transfer within the district i.e. from one Taluka to another Taluka, cannot, as a matter of right, assert that the transfer may be made as per his/ her choice. Hence, the present writ petition may not be entertained.

Heard the learned advocates for the respective parties and also perused the documents as pointed out by them.

The petitioner, being aggrieved by the provision of Clause-4 of Chapter-G of the Government Resolution dated 01.04.2022 has challenged the same. The same reads as under:

“As per the provisions contained in reference shown at Sr. No.8 and 14, the Vidhyasahayaks, who were appointed with condition to work for 10 years in the same Taluka, the said condition is modified and thus, the Vidhyasahayaks, who have completed 5 years of service, after deducting unpaid leaves, shall be entitled to make application for district transfer and also for district mutual transfer.”

The petitioner is seeking transfer within the district i.e. from one Taluka to another Taluka. This Court does not find the aforesaid Clause-4 of Chapter-G of the Government Resolution dated 01.04.2022 in violation of Article 14 of the Constitution of India as the same only regularizes the transfer of the teachers, who have been appointed and bond has been taken for the period of 10 years of service in the same district. On the contrary, period of 10 years has been reduced to 5 years and teachers can now seek transfer, after completion of period of 5 years of service from one district to another.

It is the case of the petitioner that her application is not accepted as she is seeking intra-district transfer from one Taluka to another Taluka within the district, and she would be governed by the provision of Government Resolution dated 21.01.2014, which permits inter-district as well intra-district, after completion of 10 years of service.

At this stage, it would be apposite to refer to the order dated 09.11.2022 passed in Special Civil Application No.22254 of 2022, which reads as under:

“11. The petitioners have also sought modification of the transfer Policy dated 01.04.2022. It is a case of the petitioners that though the Policy, more particularly, paragraph No.4 of Chapter-G of the said Policy 01.10.2022 provides for inter district transfer, the same does not provide for Taluka transfers within a district and the same is required to be modified. This Court is of the considered opinion that such a request or prayer made by the petitioners cannot be entertained because the State Government and the State authorities in its wisdom have framed such policies looking to the administrative convenience. The Policy provides for inter district transfer and not transfer within the Taluka within the district in those cases of vidyasahayaks, who have been appointed for a period of ten years. In the present case, the petitioners are claiming to be transferred to their original Taluka: Khedbrahma as Taluka: Poshina has been newly formed Taluka after the bifurcation of Taluka: Khedbrahma. This Court while exercising its power under Article 226 of the Constitution of India cannot further introduced condition in the Resolution dated 01.04.2022, more particularly, condition No.4 of Chapter-G for providing a transfer from Taluka to Taluka within the district for those vidyasahayaks, who have been appointed for a period of ten years. It is also not disputed that the case of the petitioners are governed by the Resolution dated 30.08.2017 and also the Resolution dated 21.01.2014 which are in existence and are not modified or rescinded. The Co-ordinate Bench after considering the provisions of Resolution dated 30.08.2017 in the judgment dated 08.03.2022 passed in Special Civil Application No.3210 of 2022 and allied matters has held as under:-

“15. Having considered the submissions made by the learned counsel for the respective parties, what needs to be seen is the stand of the State in context of the resolutions issued by the State from time to time. Prior to the resolution dated 30.08.2017, the State had framed a policy decision by a resolution of 21.01.2014 which is on record of Special Civil Application No.3210 of 2022. Reading ofthe resolution indicates that the State found that in several Talukas in the primary sections of Classes 1 to 5, there was a deficit of teachers. This was adversely affecting the students’ education. In order to maintain and not to deprive the students of the education in those districts and the 2000 vacancies that were found to have been existing in those districts for the academic year 2013-14, a decision was taken to recruit 2000 Vidhya Sahayaks subject to certain conditions. Conditions no.3 and 4 of the resolution stipulated that as and when an incumbent is appointed in this Taluka, he would continue to serve the Taluka for a period of 10 years. That on the appointment, the concerned incumbent would not ask for a transfer outside the Taluka. Similar resolution was passed on 23.09.2014 in context of 1300 vacancies for the academic year 2014-15 reiterating similar conditions. In the year 2017, on 30.08.2017 for the districts of Chhota Udaipur, Kutch and Devbhumi Dwarka, where the petitioners come from, such a resolution was passed for recruitment in the academic year 2017-18 for 1300 vacancies that were found to be in the concerned Talukas. The conditions of 10 years embargo on continuing in the districts, Taluka school and not requesting for transfer was reiterated.

Appointment orders are on record of the petitioners where with their open eyes the petitioners have accepted these appointments. A sample appointment order dated 13.10.2017 filed in the petition would indicate that the petitioners when appointed accepted by virtue of the condition nos.2 and 3 in the orders that they will continue to serve the Taluka for the period of 10 years. That they will not ask for moving out for Taluka on transfer. In accordance with the resolution dated 22.03.2017, they gave a bond of Rs.3 lakhs as stipulated in condition no.4 of their appointment orders.

Having accepted the appointments to work in the Talukas where teachers were needed, the petitioners bound themselves to be continued in the Taluka schools at the relevant point of time for a period of 10 years from the date of their appointments.

Reliance placed on the resolution dated 22.03.2017 and to submit that the petitioners be relieved of their obligation to serve for a period of 10 years, inasmuch as they would be willing to pay an amount of Rs.3 lakhs in case where teachers have completely less than three years of service and in cases of having completed more than four years of service, that condition not being applicable and they be relieved is a misconceived submission. From the resolutions of 2014 which are reiterated in the resolution of 30.08.2017 pursuant to which the petitioners were appointed is clearly made a condition of their appointment that they will continue to serve for a Taluka for a period of 10 years and not claim transfer. The argument of Mr.Chudasama that what they are claiming is a benefit of fresh recruitment and not transfer is also misconceived. The effect of a fresh recruitment and in the event of the petitioners being selected, would indicate that the petitioners if selected will move out of the districts in which they were appointed. This would frustrate the conditions of the resolution and the appointment orders which they with their open eyes accepted. The petitioners are bound by the conditions of the resolution dated 30.08.2017 and the conditions in the appointment order. They cannot now turn around and say that having completed more than 3 years, in such cases they be relieved of their obligation to serve the district or in case where they have completed less than three years, they are willing to pay an amount of Rs.3 lakhs. Such a stand would frustrate the very object for which the resolutions of 2014 and 2017 pursuant to which the petitioners were appointed were enacted. The policy pursuant to which the petitioners have been appointed was with an object to see that in the district where the teachers do not opt for transfer and who face shortage of teachers, teachers be appointed with a condition that they may continue to serve such a district for a period of 10 years. That policy is also not a subject matter of challenge in these petitions.”

This Court has no reason to deviate from the observations made by the Co-ordinate Bench. All the petitioners are bound by these conditions, which are envisaged in their appointment orders and also Resolutions dated 30.08.2017 and 22.03.2017.

The petitioners, as a matter of right, cannot claim their transfer from one Taluka to another Taluka on the basis that on the bifurcation of Taluka. The petitioners have obtained their benefit of regularization and regular pay scale in the new Taluka and after obtaining the same cannot, as a matter of right, claim their transfer to the erstwhile Taluka: Khedbrahma wherein they were appointed.

In the present case, as noted hereinabove, the transfer of the petitioners are governed by the policy decision by the State Government and the conditions envisaged in their appointment orders. Merely because, there was bifurcation of Taluka in which they were serving, cannot give rise to any right of being transferred to the original Taluka: Khedbrahma, as it would be in absolute to domain of the respondent-State Authorities to effect their transfer or posting as per the Policy. The condition No.16 of the guidelines issued by the State Authority on 29.10.2022 will not help the petitioners in any manner, since the some only prescribes for filing of application for transfer within the taluka in which they are appointed for ten years. Such condition will not apply in case of bifurcation of taluka.”

This Court, in the aforesaid decision, while placing reliance on the judgment of the Coordinate Bench dated 08.03.2022, after considering the provisions of the Resolution dated 30.08.2017 and and the conditions envisaged in the appointment orders has held that such teachers are bound by the conditions of their bond and the appointment orders and cannot claim intra-district transfer. As per the Clause-19 of the appointment order dated 15.12.2014, the petitioner neither can seek Taluka transfer nor district transfer. Merely because the petitioner is aggrieved and inconvenience is caused to her, within the district and she is seeking transfer from one Taluka to another Taluka within the district, the same itself would not be sufficient enough to set aside the policy decision. Even otherwise the case of the petitioner would be bound by the condition of the bond and the appointment order which she has accepted.

Hence, the present writ petition fails. The same is rejected summarily.