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2022 Supreme(Guj) 1414
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BIREN VAISHNAV, J.
Sachinchandra Dineshchandra Vaghela – Appellant
Versus
State Of Gujarat – Respondent
Civil Application (For Direction) No. 1 of 2020, Civil Application (For Stay) No. 1 of 2020, R/Special Civil Application No. 22752 of 2019, R/Special Civil Application No. 329, 345, 350, 907, 906, 4688, 8046, 8419, 10996 of 2020, 22287, 22293, 22315, 22294, 22479, 23059, 22536, 22695, 23069, 22755 of 2019, 1909, 2787, 3160, 3382, 3979, 4804, 5391, 6344 of 2020
Decided on : 20-10-2022
Advocate Appeared:
For the Appellant MR SHALIN MEHTA, SENIOR ADVOCATE WITH MS SHIKHA PANCHAL AND MS ADITI S RAOL(8128), MR BY MANKAD, MR KB PUJARA, MR PARESH PATEL, MS MAMTA VYAS, MR SAMIR GOHIL, MR BHAVESH PATEL, MR RADHESH VYAS, MR GAURAV CHUDASAMA
For the Respondent: MS MANISHA LAVKUMAR, MS SHRUTI PATHAK, MR HS MUNSHAW, MR MP PRAJAPATI, MR RUTVIJ BHATT, MR MANISH J PATEL, MR UM SHASTRI, MR NILESH PANDYA
The central legal point established in the judgment is the importance of upholding statutory provisions and service conditions in the context of Head Teacher appointments and transfer guidelines under the RTE Act.
Headnote:
RTE Act - Government Resolution - 2(f), 19, 25 - The judgment discusses the challenge to a Government Resolution canceling paragraph no. 4 of a previous resolution and introducing a provision for declaring Head Teachers as surplus if student strength is not maintained. The court analyzes the RTE Act, emphasizing the provisions for Head Teacher appointments and transfer guidelines. The court quashes the impugned resolution and transfer orders, citing violations of statutory provisions and service conditions.
Fact of the Case:
The petitions challenge a Government Resolution canceling a previous provision and introducing a new provision for declaring Head Teachers as surplus if student strength is not maintained. The petitioners argue that the resolution is inconsistent with the RTE Act and rules, leading to arbitrary transfers and displacement of Head Teachers.
Finding of the Court:
The court finds that the impugned resolution and transfer orders violate the provisions of the RTE Act and the service conditions of Head Teachers. It emphasizes the statutory requirements for Head Teacher appointments and transfer guidelines, quashing the resolution and transfer orders.
Issues: The issues revolve around the legality of the impugned Government Resolution and the consequential transfer orders in light of the RTE Act and the service conditions of Head Teachers.
Ratio Decidendi: The court's decision is based on the interpretation of the RTE Act provisions, emphasizing the requirements for Head Teacher appointments and transfer guidelines. It concludes that the impugned resolution and transfer orders violate statutory provisions and service conditions, leading to their quashing.
Final Decision: The court quashes the impugned Government Resolution dated 09.10.2019 and the consequential transfer orders, allowing the petitions and making the rule absolute.
JUDGMENT :
1. Rule returnable forthwith. Learned advocates appearing for the respondents waive service of notice of rule.
1.1 All these petitions challenge the Government Resolution dated 09.10.2019 passed by the State Government by which paragraph no. 4 of the resolution dated 27.08.2012 has been cancelled and it is laid down that in the concerned school, if the strength of 150 students in standards 1 to 5 or 100 students in standard 6 to 8 or 250 students in standards 1 to 8 is not maintained, then the Head Teacher shall be declared as surplus and shall be liable to be transferred as excess.
1.1 Clause 2.1 of the Government Resolution provides for such transfer. By virtue of the operation of the said clause, transfer orders have been made of various Head Teachers which too are the subject matter of challenge in these petitions though, each petition may have a separate prayer in the respective petitions.
2. Facts in brief would indicate as under:
2.1 It is the case of the petitioners that the Right of Children to Free and Compulsory Education Act, 2009 (for short ‘the RTE Act’) was enacted and brought into force on 01.04.2010. According to the Schedule of the Act, it is compulsory to have one Head Teacher in standards 1 to 5 if the admitted children are above 150 and one Head Teacher in standards 6 to 8 if the admitted children are above 100. According to the petitioners, with a view to enforce these provisions, a separate cadre of Head Teachers – Class III in the subordinate service of the Directorate of Primary Education was created. Recruitment rules were framed vide notification dated 18.01.2012 which provided for appointment by way of promotion and by way of direct selection.
2.2 By a Government Resolution dated 22.08.2012, past service of the teachers who are appointed as Head Teachers were treated as continuous. It also provided for guidelines for the purposes of transfer which was in accordance with the GAD resolution of 25.10.2000 in place of Class-III employees. It is the case of the petitioners that on being appointed as Head Teachers it was understood that they would be governed by these service conditions. However, by the impugned resolution, transfer of Head Teachers is now like any other teacher by holding camps.
3. Mr. Shalin Mehta, learned Senior Advocate, Mr. K.B. Pujara, learned advocate, Mr. Gaurav Chudasma, learned advocate have led the arguments for and on behalf of all the learned counsels for the petitioners.
4. Mr. Mehta, learned Senior Advocate appearing with Ms. Shikha Panchal and Ms. Aditi Raol, learned advocates would make the following submissions:
(I) That by the impugned resolution of 09.10.2019, an inconsistent provision has been introduced which is contrary to the norms prescribed in the RTE Act and the rules. The rules clearly prescribe that there must be one Head Teacher per 150 students of lower primary division and 1 for 100 students of upper primary division. There is no convergence of lower primary division and upper primary division. By the resolution under challenge, in addition to the above ratio, one more head is added by which lower and upper primary divisions have been clubbed together allowing 1 Head Teacher per 250 students of both lower and upper primary divisions which does away the possibility of having two Head Teachers, one each for lower primary and upper primary sections.
(II) Relying on the provisions of Sections 19 and 25 of the RTE Act, he would submit that when the same is read with the Schedule of the Act, it clearly provides that there shall be one Head Teacher if more than 150 students’ strength is in standards 1 to 5. Similarly, if there are more than 100 students in standards 6 to 8 there will be one Head Teacher. The RTE Act requires the State Government to bifurcate the primary sections in two divisions.
(III) It is in light of the provisions of Section 23 of the Guja
