Point of law: As a disciplined employee, the petitioner has obeyed the said orders under protest and he has joined duties at the place of transfer though he is BLIND and though the impugned order is contrary to the statutory policy of the State Government laid down in G.R. and contrary to the Hon’ble High Court’s interim order.

ORDER :

1. This petition under Article 226 of the Constitution of India is filed with following prayers:-

“8. (a) to admit this petition and to allow the same by issuing Notice for Final Disposal on returnable date.

(b) to quash and set aside the impugned order dated 26-11-2020 issued by the Resp. No.3 and received by the petitioner on 27-11-2020 as per Annexure-G;”

2. While issuing notice on 03.12.2020, this Court directed that till next date of hearing, the respondent authority shall not issue any posting order to the petitioner. It was also directed that this petition is to be heard with SCA Nos.15170 and 15411 of 2020. However, as requested by learned Advocate for the petitioner, despite the aforesaid order, this petition is taken up independently.

2.1 It appears that on 04.12.2020, posting order was issued and hence, amendment was moved, which came to be allowed by order dated 15.12.2020 and the amended prayer is as under:-

(f) to quash and set aside the impugned order transfer dtd. 04.12.2020 issued by the Resp. No.3 as per Annexure J/1 by wrongfully treating the petitioner as excess teacher in Jodhpur Primary School No.2 and transferring him to Sarkhej Branch Primacy School No.2, and to restore the status-quo ante as prevailing prior to 4-12-2020;”

2.2 It is now reported that the petitioner has, despite stay order in favour of the petitioner, reported to the place to which the petitioner is transferred as having declared surplus.

3. Learned Advocate for the petitioner submitted that the petitioner is a blind candidate and having passed MA, B.Ed. was duly selected and appointed as primary teacher in Kamijla Primacy School, Tal. Viramgam, Dist. Ahmedabad. Thereafter, the petitioner was transferred to Ravinagar Primary School No.1, Tal. City, Dist. Ahmedabad. Thereafter being declared surplus at Ravinagar Primary School No.1, the petitioner was transferred to Jodhpur School No.2, Tal, City, Dist. Ahmedabad on 26.11.2008.

3.1 It is submitted that in view of enactment of the Right of Children to Free and Compulsory Education Act, 2009 with effect from 01.04.2010, primary section was divided into primary section (consisting of standards 1 to 5) and upper primary section (consisting of standards 6 to 8). The State came out with GR dated 16.02.2012 giving option (“vikalp”) to those teachers who were qualified to be appointed to upper primary section to be absorbed in upper primary section and had invited such options from teachers. The petitioner had given such option for absorption as there was one vacancy in language teacher in the very school, i.e. Jodhpur School No.2 and accepting option given by the petitioner, by order dated 31.07.2012, the petitioner was posted as language teacher in the same school.

3.2 Learned Advocate for the petitioner submitted that there was a clarification in the earlier GR by GR dated 07.09.2013, which would indicate that for the purpose of transfer in respect of the teachers who had given option and were absorbed in upper primary, seniority has to be considered from the date of their appointment in the school and not from the date of exercising of option. On the basis of this, the petitioner claims that the date of appointment for the petitioner in Jodhpur School No.2 to be treated as 26.11.2008 and not 31.07.2012.

3.3 The petitioner filed this petition on the ground that as there were surplus teachers and exercise for declaring surplus teacher at Jodhpur School No.2 was to take place, the petitioner apprehended that the petitioner would be considered to be junior most and other candidate, viz. Ashvin C.Patel, who entered Jodhpur School No.2 by direct recruitment on 05.09.2011 would be treated as his senior though his appointment is of 05.09.2011 whereas appointment of the petitioner is 26.11.2008 in Jodhpur School No.2. Learned Advocate for the petitioner submitted that transfer of the petitioner for havi