Patel Maheshkumar Narayanbhai vs State Of Gujarat

Biren Vaishnav, J

RULE returnable forthwith. Mr.Utkarsh Sharma learned AGP waives service of notice of Rule on behalf of the respondent Nos.1 and 2 and Ms.Niyati Vaishnav learned advocate for Mr.Pinakin Raval learned advocate waives service of notice of Rule on behalf of the respondent No.3. Though served, nobody appears for the respondent no.4.

With the consent of learned advocates for the respective parties, the petition is taken up for final hearing.

Challenge in this petition under Article 226 of the Constitution of India is to an order dated 23.02.2019 transferring the petitioner from Chandrala Primary School.

Ms.Vidhi Bhatt learned counsel for the petitioner would submit that the petitioner was appointed as Vidhya Sahayak on fixed pay basis by the District Primary Education Officer. The petitioner was thereafter absorbed on a regular set up on completion of five years in the year 2009. As a result of the bringing in of the Right of Children to Free and Compulsory Education Act, 2009 (‘RTE Act’ for short), there are two categories viz. Lower Primary Division (Standards 1 to 5) and Upper Primary Division (Standards 6 to 8). Under Sections 19 and 25 of the RTE Act, the school was required to fill certain norms in standards as per the schedule in the Act.

Ms.Bhatt would rely on the resolution of the State dated 03.06.2010 and submit that when the strength of the students was between 61 to 90, a school ought to have three teachers. When read with the Government Resolution dated 23.05.2012, which pertains to transfer of primary teachers, for the purposes of carrying out the exercise of transfers, the set up each year as on 31st August has to be seen and accordingly transfer in the surplus teachers’ transfer camps are to be carried out. Relying on an extract of the school register of Chandrala, she would submit that in August 2018, the student’s strength of the school was 61 i.e. more than 1 student for the purposes of declaring the petitioner as surplus and when this is in light of the resolution dated 03.06.2010, the petitioner was the 3rd teacher in the school and therefore could not have been declared as surplus. She would also rely on an extract of the register of the Chandrala School produced together with the amendment which indicated the student’s strength, respectively as on 31.08.2018, 30.09.2018, 31.10.2018 etc. Even as per this extract, the total strength of the students on 31.10.2018 was 62. This therefore are pointers to suggest that there was no reason why the petitioners could not have been transferred out of Chandrala Primary School when admittedly the students’ strength was not at any point of time below 60 as required under the norms.

Ms.Bhatt would submit that pursuant to a communication dated 09.10.2018, a fresh inspection was carried out in several schools which too, indicated that Chandrala School has student strength of 61. The calculation therefore cannot be faulted so as to declare the petitioner as surplus and moved him out of Chandrala Primary School.

Ms.Vaishnav learned advocate for Mr.Pinakin Raval learned advocate for respondent no.3 would submit that in fact, on receiving instruction by the office order dated 09.10.2018, few surprise inspection visits were carried out by the authorities in around 200 schools in District Gandhinagar, out of which, 49 schools were found with wrong calculation. It is the case of the deponent of the reply filed i.e. the District Primary Education Officer, Gandhinagar, that the schools gave wrong calculations just to avoid surplus teachers’ situation. She would submit that the inspection was carried out in Chandrala Primary School. In the earlier set up, the Chandrala school showed 61 students, as a result of which, the school was allowed to retain all the three teachers. However, after inspection, based on the Annexure R-III statement on record, it was found that the total number of students in this particular school is 6. Accordingly, as the number of teachers were required to be only two, the petitioner being the junior most teacher, was declared as surplus.

Noting all these facts, what is evident is that it is the case of the petitioner that based on the extract of the register for August 2018, the set up of the school as on 31.08.2018 was 61. Even in the statement produced by way of an amendment carried out in the petition, the extract of the register is annexed of the school in question. The set up as on 31.10.2018 when the inspection was carried out was 62. However, what needs to be noted is that this stand is disputed by the District Primary Education Officer in his affidavit in reply to submit that the strength in fact was 60.

Ms.Bhatt would submit that during the course of inspection that is carried out, intervening circumstances as to the absence of students is not taken care of which may be a result of reduction in the student’s strength because as and when the inspection is carried out, the authorities may not take note of the absence of the students in a class or a school which would result in reduction of the students’ strength.

Based on the statements given by the petitioner as well as the respondent District Primary Education Officer, what appears is that the stand of the petitioner from the registers is that the strength at no stage was below 61 in August 2018 and October 2018, whereas, the District Primary Education Officer would dispute the same.

In light of these extracts produced by the respective parties, it is directed that the District Primary Education Officer shall have a fresh look at the students’ strength as per the statements given by the petitioner and the respondent and after a fresh examination of the strength in light of the policy dated 23.05.2012 read with the policy resolution dated 03.06.2010, the issue may be reconsidered at the hands of the District Primary Education Officer in context of the validity of the order of transfer in case of the petitioner.

Decision afresh be taken by the respondent District Primary Education Officer within a period of six weeks from the date of receipt of copy of this order. It will be open for the respondents to even consider the policy in vogue i.e. 01.04.2022 while taking a fresh look. The issue will be looked into keeping in mind the materials placed by the respective parties on the basis of the sanctioned set up as on 31.08.2018.

Petition is disposed of in the above terms.