SCA/1015119/1998 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10151 of 1998 For Approval and Signature: HON'BLE SMT.JUSTICE ABHILASHA KUMARI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= PATEL VINODABEN POPATLAL - Petitioner(s) Versus DIRECTOR OF PRIMARY EDUCATION & 2 - Respondent(s) ========================================================= Appearance : MR MEHUL SHARAD SHAH for Petitioner(s) : 1, MR KL PANDYA, AGP for Respondent(s) : 1 - 2. MR RAJESH CHAUHAN FOR MR HS MUNSHAW for Respondent(s) : 3, ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 14/08/2008 ORAL JUDGMENT 1. This petition is directed against the order dated 21.11.1998 passed by the respondent No.3 SCA/1015119/1998 2/9 JUDGMENT whereby the petitioner has been transferred from Biliya to Kaleda. 2. The brief facts of the case are that the petitioner had applied for the post of Vidya Sahayak, pursuant to the advertisement issued by the respondents on 25.6.1998, in the daily newspaper “Sandesh”. She was subjected to an interview by the District Education Committee on 3.8.1998 and was selected for the post of Vidya Sahayak. By letter dated 25.10.1998, the petitioner was intimated that she was at Sr.No.6 of the merit-list and was further directed to remain present at the District Education Training Center at Patan on 5.11.1998. It is averred that in the Camp which was organized by the respondents on 5.11.1998, the petitioner was asked to select the place of her choice for posting, from the places exhibited on the notice-board on that day. It is alleged by the petitioner that other candidates were permitted to select places of their choice which did not figure in the list displayed on the notice-board but the petitioner was compelled to choose her SCA/1015119/1998 3/9 JUDGMENT place of posting only from those places which were displayed on the notice-board. According to the petitioner, even though Kaleda was at a distance of over 30 kilometers from her native place, and was not her choice place of posting, she had no other option but to choose Kaleda as her place of posting from amongst the other places displayed on the notice-board. However, having done so, the petitioner submitted an application dated 6.11.1998 whereby she raised an objection about having to choose Kaleda as her place of posting and also gave her preference of places of posting, namely Tavadia, Ganeshpura, Devli, Gagvasan, and Madhupura. By way of this application, a request was made by the petitioner to post her at one of the places of her choice. Instead of appointing the petitioner at one of the places of her choice or at Kaleda, the petitioner received an appointment letter dated 7.11.1998 whereby, she was appointed and posted at Biliya Girls Primary School. In obedience to the said order of appointment and posting, the petitioner joined SCA/1015119/1998 4/9 JUDGMENT her service at Biliya Girls Primary School with effect from 9.11.1998. It is the case of the petitioner that having joined at the place of appointment pursuant to the order dated 7.11.1998, the petitioner received an order dated 21.11.1998 issued by the respondent No.3 whereby the petitioner's appointment at Biliya Girls Primary school was cancelled and she was directed to resume duty at Village Kaleda, Taluka: Siddhpur, which is at a distance of over 30 kilometers from the native place of the petitioner. Being aggrieved by the order dated 21.11.1998, the petitioner has approached this Court by filing the present petition. 3. Rule was issued on 9.2.1999 and the implementation and execution of the impugned order was stayed. 4. Mr.Mehul S.Shah, learned counsel for the petitioner, has submitted that the petitioner is drawing a meagre salary of Rs.2,500/- and since she has joined at Biliya in deference to the order of appointment, the said order could not SCA/1015119/1998 5/9 JUDGMENT have been cancelled in violation of the clause contained in the Scheme for Vidya Sahayaks framed by the Government. It is submitted by the learned counsel for the petitioner that the said Scheme envisages that once the letter of appointment has been given to a Vidya Sahayak for a particular place, no change can be made or transfer effected, regarding the place of initial appointment and posting. It is further submitted that even though the petitioner was asked to give a place of her choice from the places displayed on the notice-board in the Camp organized on 5.11.1998, she had unwillingly chosen Kaleda since other places of her choice were not displayed on the notice board, even though other candidates were permitted to choose from places which were not displayed on the notice-board. It is emphasized by Mr.Shah that even though the petitioner had chosen Kaleda but the appointment letter issued to her was for Biliya Girls Primary School where she has joined on 9.11.1998. It is categorically stated by Mr.Mehul S.Shah that no appointment letter was SCA/1015119/1998 6/9 JUDGMENT issued to the petitioner for Kaleda and since the Scheme of the respondents is very clear that an appointment issued for one place should not, thereafter, be changed, the petition deserves to be allowed. 5. Mr.Rajesh M.Chauhan, learned advocate for Mr.H.S.Munshaw, learned counsel for the respondent No.3, has submitted that the petitioner had indicated Kaleda as her place of posting on 5.11.1998 and, therefore, the appointment letter given to her for village Biliya is not correct as later on, the Director of Primary Education issued instructions on 19.11.1998, to the effect that change in the original place of appointment is contrary to the earlier directions and hence, the petitioner should be posted back to the original place of posting. It is submitted that since the petitioner had indicated Kaleda as her choice of posting, the impugned order is just and proper and the petition may be dismissed. The reply-affidavit filed by the respondent No.3 SCA/1015119/1998 7/9 JUDGMENT also goes along the same lines. 6. I have heard Mr.Mehul S.Shah, learned counsel for the petitioner, Mr.K.L.Pandya, learned Assistant Government Pleader for respondents No.1 and 2 and Mr.Rajesh M.Chauhan learned advocate for respondent No.3 and have gone through the averments made in the petition as well as the documents annexed thereto. 7. It is evident from a perusal of the documents on record, particularly, the order dated 7.11.1998 issued by the respondent No.3, that the petitioner has been appointed as Vidya Sahayak at a fixed salary of Rs.2500/- and posted at Biliya Girls' Primary School. There is no appointment order on record prior to this, appointing and posting the petitioner at Kaleda. The statement made in the affidavit-in-reply of the respondent No.3 to the effect that the petitioner should be posted at the earlier place of appointment i.e. Kaleda as per the Scheme for Vidya Sahayaks is, therefore, not borne out from the material on record. It may be true that the SCA/1015119/1998 8/9 JUDGMENT petitioner indicated Kaleda as her place of posting on 5.11.1998 from amongst the places indicated on the notice-board. However, no appointment and posting order came to be issued to the petitioner for Kaleda. The only appointment order that has been issued to the petitioner is for Biliya Girls Primary School. Admittedly, as per the Scheme for Vidya Sahayaks, a copy of which is to be found at page 30 of the paper-book, it has been clearly stipulated that there shall be no change or transfer in the place of posting of a Vidya Sahayak once an appointment order has been issued for a particular place. In the light of the clear stipulation in the Scheme, it is clear that the impugned order dated 21.11.1998, cancelling the order of appointment and posting of the petitioner at Biliya after the petitioner had already joined at that place, is in contravention of the scheme and, therefore, cannot be upheld. 8. The prayers made in the petition, having considerable merit, therefore deserve to be SCA/1015119/1998 9/9 JUDGMENT accepted. The petition is, accordingly allowed. The impugned order dated 21.11.1998 is, set aside. Rule is made absolute. There shall be no orders as to costs. (Smt.Abhilasha Kumari, J.) (sunil)