JUDGMENT :

Biren Vaishnav, J.

1. Rule returnable forthwith. Learned advocates waive service of notice of Rule for the respective respondents.

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

3. By way of this petition, under Article 226 of the Constitution of India, the prayer in this petition by the petitioners is to quash and set aside the orders dated 9.10.2020 which were passed keeping in view the policy dated 23.5.2012.

4. The short ground on which the order of transfer is challenged is that the petitioners who were initially appointed on 12.4.1989, 19.11.1998 and 28.9.1999 opted for going to the upper primary section on 28.11.2004 and then they were serving in the schools prior to the date of transfer from 28.11.2004, 15.3.2007 and 28.11.2004.

5. The impugned order of transfer has been passed on the basis that, since the petitioners opted to go to the upper primary section in the year 2012, their seniority for the purposes for transfer have to be counted from the date of such option.

6. Mr. Sudhanshu A. Jha, learned counsel for the petitioners would rely on oral order dated 25.08.2021 passed in Special Civil Application No. 15874 of 2020 of this Court in the case of Patel Meghnaben Jayantibhai vs. State of Gujarat, by which, the Court has in Paragraph Nos. 21 and 22 opine that reading the relevant Clauses of the GR dated 23.5.2012 seniority has to be counted from the date of their appointment in the respective schools and not from the date of their allotment in the upper primary section.

7. Mr. H.S. Munshaw, learned counsel appearing for the respondent No. 2 has relied on the affidavit-in-reply filed by the District Primary Education Officer, Porbandar. He would submit that the lower primary sections and the upper primary sections are different, that the subjects in primary sections consist of Maths, Science, Language and Social Science. He would also refer to the Resolution dated 3.6.2010 laying down a ratio of students. Reliance is also placed on the Resolution dated 26.10.2020 which, according to Mr. Munshaw categorically laid down that Vidhya Sahayak/Assistant Teachers of lower primary sections will be transferable in the lower primary sections only. It is also laid down that Vidhya Sahayaks or Assistant Teachers of the upper primary sections, can be transferred only to their section:

6.1. Mr. Munshaw would also invite the attention of the Court to the relevant averments of the paragraphs in the reply which indicates that the petitioner No. 1 joined as Assistant Teacher in the primary section in 1989 and later on was posted to Keshav Primary School, Porbandar on 28.11.2004. On the basis of the strength determined on 31.8.2020, there were four teachers though the required set up was of 3 and, therefore, the petitioner being the junior most was required to be transferred. Similarly, in case of the petitioner No. 2, despite the required set up of 6 teachers, in all, there were 8 and, therefore, 2 including the petitioner No. 2 were required to be transferred as being excess. So also in the case of the petitioner No. 3, the set up as on 31.8.2020 was of 6 teachers where there were in all 8 teachers and, therefore, 2 teachers including the petitioner No. 3 was required to be transferred.

8. Mr. Nilay Patel, learned counsel appearing for the private respondents would submit that in accordance with the circular dated 23.5.2012 and in view of better qualifications of the private respondents who had cleared the TAT examination, transfer in accordance with the policy and seniority i.e. to be reckoned from the date of entering into that category of upper division is just and proper:

7.1. In support of his submissions, Mr. Patel would rely on a decision of Bombay High Court in the case of Gaur Pratibha vs. State of Maharashtra and Others decided on 9.4.2019 in Writ Petition No. 14242 of 2018 and allied matters. He would submit that in the case before the Bombay High