Bombay High Court
Aade Vijaykumar Khemaji And ... vs The State Of Maharashtra And ... on 22 June, 2017
Bench: Anoop V. Mohta
1 WP 6640.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6640 OF 2017
1. Maharashtra Rajya Shikshak Sena,
Through its Taluka President,
Tal. Basmat, Dist. Hingoli,
Sahebrao Bapurao Yashwante,
Age:- 47 years, Occ. Service as
Primari Teacher, Zilla Parishad
Primary School, Revulgaon,
Tal. Basmat, Dist. Hingoli.
2. Maharashtra Rajya Prathmik
Shikshak Sangh, Hingoli,
Through its Taluka Vice President,
Anil Lingusa Kamlu,
Age:- 45 years, Occ. Service as
Graduate Teacher, Zilla Parishad
Primary School, Palsi,
Tal. Basmat, Dist. Hingoli. .... Petitioners
Versus
1. The State of Maharashtra,
Through its Principal Secretary,
Rural Development Dept.,
Mantralaya, Mumbai.
2. The Principal Secretary,
School Education Department,
Mantralaya, Mumbai.
3. The Commissioner of Education,
Maharashtra State, Pune.
4. The Zilla Parishad, Dhule,
Through its Chief Executive Officer .. Respondents
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Shri S. S. Thombre, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent Nos. 1 to 3.
Shri S. B. Ghute, Advocate for the Respondent No. 4.
WITH
WRIT PETITION NO. 6642 OF 2017
1. Shiksahk Pratinidhi Sabha (Shikshak
Congress) through its District President,
Keshav Shyamrao Gambhire,
Age:- 39 years, Occu:- Teacher,
A/P Zillha Parishad Primary School,
Machartwadi, Tq. Nilanga, Dist. Latur.
and 69 others .. Petitioners
Versus
1. The State of Maharashtra,
Through its Principal Secretary,
School Education Department
Mantralaya, Mumbai-400 032.
and 06 others .. Respondents
Shri S. K. Mathpati, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent Nos. 1 to 5.
WITH
WRIT PETITION NO. 7820 OF 2017
Akhil Bhartiya Prathmik Shikshan
Sangha, through its Executive President,
Shegji Fattu Walvi,
Age:- 40 Years, Occ. Service as
Assistant Teacher, Zilla Parishad
Primary School, Tawali,
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Tal. Akkalkuwa, Dist. Nandurbar. .. Petitioner
Versus
1. The State of Maharashtra,
Through its Principal Secretary,
Rural Development Dept.,
Mantralaya, Mumbai
and 04 others .. Respondents
Shri S. S. Thombre, Advocate for the Petitioner.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent Nos. 1 to 3.
WITH
WRIT PETITION NO. 6626 OF 2017
Maharashtra Rajya Prathmik
Shikshak Sangha, State Publicity Head,
Rajesh Keshvrao Hiwale,
Age:- 40 Years, Occ. Service as
Assistant Teacher, Zilla Parishad,
Center Primary School, Asegaon,
Tal. Gangapur, Dist. Aurangabad. .. Petitioner
Versus
1. The State of Maharashtra,
Through its Principal Secretary,
Rural Development Dept.,
Mantralaya, Mumbai.
and 03 others .. Respondents
Shri S. S. Thombre, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent Nos. 1 to 3.
WITH
WRIT PETITION NO. 7590 OF 2017
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1. Abdul Raheman Shaikh Abbas,
Age --- Years, Occu. : Service,
R/o Z. P. P. S. Urdu School No. 3,
Chopda, Tq. Chopada, Dist. Jalgaon
and 19 others .. Petitioners.
Versus
1. The State of Maharashtra
Through its Secretary,
Rural Development Department,
Mantralaya, Mumbai
and 04 others .. Respondents.
Shri M. R. Wagh, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent Nos. 1 to 4.
WITH
WRIT PETITION NO. 6621 OF 2017
1. Ganesh Pandurang Kute,
Age : 39 Years, Occu. : Service,
R/o Shivnagar, Jalna,
Tq. & Dist. Jalna.
and 16 others .. Petitioners
Versus
1. The State of Maharashtra
Through its Secretary,
Rural Development and Water
Department, Mantralaya,
Mumbai - 32.
and 04 others .. Respondents
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Shri Suvid S. Kulkarni, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 to 3.
Shri A. R. Aghav, Advocate for Respondent Nos. 4 and 5.
WITH
WRIT PETITION NO. 7846 OF 2017
1. Vinod S/o Prakash Dike,
Age : 34 Years, Occu. : Service,
R/o Shingi, Kendriya Primary School,
Tq. Gangapur, Dist. Aurangabad
and 44 others .. Petitioners
Versus
1. The State of Maharashtra
Through its Secretary,
Rural Development & Water
Conservation Department, Mantralaya,
Mumbai - 32
and 05 others .. Respondents
Shri Sambhaji G. Munde, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 to 4.
Shri S. B. Ghute, Advocate for Respondent Nos. 5 and 6.
WITH
WRIT PETITION NO. 7714 OF 2017
1. Ferozkhan Nurkhan Pathan,
Age : 44 Years, Occu. : Service,
R/o Kendriya Primary School,
Kesapuri Tanda, Aurangabad,
Dist. Aurangabad.
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and 31 others .. Petitioners
Versus
1. The State of Maharashtra
Through its Secretary,
Rural Development & Water
Conservation Department, Mantralaya,
Mumbai - 32.
and 07 others .. Respondents
Shri Sambhaji G. Munde, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 to 4.
Shri S. B. Ghute, Advocate for Respondent Nos. 5 to 8.
WITH
WRIT PETITION NO. 6687 OF 2017
1. Ambadas S/o Sonba Gore,
Age : 47 Years, Occu. : Teacher,
A/p. Zillha Parishad Primary School,
Temburni, Tq. Basmat, Dist. Hingoli.
and 102 others .. Petitioners
Versus
1. The State of Maharashtra
Through its Secretary,
Rural Development & Water
Conservation Department, Mantralaya,
Mumbai - 32
and 06 others .. Respondents
Shri Shivkumar K. Mathpati, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 to 5.
Shri S. B. Ghute, Advocate for Respondent Nos. 6 and 7.
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WITH
WRIT PETITION NO. 6649 OF 2017
1. Farooq Ibrahim Baig
Age - 49 Years, Occu. : Service,
Zilla Parishad Primary School,
Navi-Wadi Nanded, Tq. & Dist. Nanded
and 149 Others .. Petitioners
Versus
1. The State of Maharashtra
Through its Secretary,
Rural Development Department,
Mantralaya, Mumbai.
and 03 others .. Respondents
Shri Kishor J. Ghute Patil, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 and 2.
Shri S. B. Pulkundwar, Advocate for Respondent Nos. 3 and 4.
WITH
WRIT PETITION NO. 6258 OF 2017
1. Sudam S/o Shankar Date,
Age : 40 Years, Occu. : Service,
R/o at Post Wasunde, Tq. Parner,
Dist. Ahmednagar
and 09 Others .. Petitioners
Versus
1. The State of Maharashtra
Through its Secretary,
Rural Development and Water
Conservation Department,
Mantralaya, Mumbai.
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and 04 others .. Respondents
Shri M. R. Sonwane, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 to 3.
WITH
WRIT PETITION NO. 6748 OF 2017
1. Aade Vijaykumar Khemaji,
Age : 36 Years, Occu. : Service,
R/o C/o ZP Primary School,
Tungi (B), Tq. Ausa
and 80 Others .. Petitioners
Versus
1. The State of Maharashtra
Through Principal Secretary,
Rural Development Department,
Mantralaya, Mumbai.
and 02 others .. Respondents
Shri Vinod D. Godbharle, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 and 2.
WITH
WRIT PETITION NO. 7661 OF 2017
1. Anand Babasaheb Sarwade
Age - 33 Years, Occu. : Service,
R/o Z P P S, Mahadev Wasti,
Center Bhavathana, Tq. Ambajogai
Dist. Beed
and 17 others .. Petitioners
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Versus
1. The State of Maharashtra
Through its Secretary,
Rural Development Department,
Mantralaya, Mumbai.
and 05 others .. Respondents
Shri R. B. Narwade Patil, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 to 4.
Shri U. S. Mote, Advocate for Respondent No. 5.
WITH
WRIT PETITION NO. 6619 OF 2017
1. Vilas Abasaheb Deshmukh,
Age - 40 Years, Occu. : Agril. & Service,
R/o Vishnupuri, Tq. & Dist. Nanded.
and 09 0thers .. Petitioners
Versus
1. The State of Maharashtra
Through its Secretary,
Department of Rural and Water
Conservation, Mantralaya, Mumbai.
and 06 others .. Respondents
Shri Ganesh V. Mohekar, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 to 4.
Shri S. B. Pulkundwar, Advocate for Respondent Nos. 5 to 7.
WITH
WRIT PETITION NO.7712 OF 2017
1. Shivaji Balasaheb Navale
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Age - 43 Years, Occu. : Service,
As Assistant Teacher, Presently
Working with Z. P. Primary School,
Lambe Wasti, Tq. Newasa,
Dist. Ahmednagar
and 80 others .. Petitioners
Versus
1. The State of Maharashtra
Through its Secretary,
School Education Department,
Mantralaya, Mumbai.
and 10 others .. Respondents
Shri P. R. Katneshwarkar, Advocate h/f Shri A. G. Ambetkar,
Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 to 3.
Shri S. T. Shelke, Advocate for Respondent Nos. 4 and 5.
WITH
WRIT PETITION NO. 6715 OF 2017
Rajshree Rajesh Jagtap
and 17 others .. Petitioners
Versus
1. The State of Maharashtra
and 10 others .. Respondents
Shri R. F. Totala and Shri Rahul Totala, Advocate h/f Shri R. K.
Temkar, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 to 4.
WITH
WRIT PETITION NO. 6716 OF 2017
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Vyenkat S/o Bhujangrao Kendre
and 25 others .. Petitioners
Versus
1. The State of Maharashtra
and 05 others .. Respondents
Shri J. M. Murkute, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 to 4.
WITH
WRIT PETITION NO. 6723 OF 2017
Gajanan Arjuna Khillari
and 18 others .. Petitioners
Versus
1. The State of Maharashtra
and 06 others .. Respondents
Shri S. K. Mathpati, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 to 4.
Shri S. B. Ghute, Advocate for Respondent Nos. 6 and 7.
WITH
WRIT PETITION NO. 5719 OF 2017
Dilip s/o Ramakant Dhakane .. Petitioner
Versus
1. The State of Maharashtra
and 05 others .. Respondents
Shri S. G. Mundhe, Advocate for the Petitioner.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 to 4.
Shri S. B. Ghute, Advocate for Respondent Nos. 5 and 6.
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WITH
WRIT PETITION NO. 6623 OF 2017
Rajesh S/o Gangadhar Jagtap
and 26 others .. Petitioners
Versus
1. The State of Maharashtra
and 05 others .. Respondents
Shri R. F. Totala and Shri Rahul Totala, Advocate h/f Shri R. K.
Temkar, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 to 4.
WITH
WRIT PETITION NO. 6724 OF 2017
Smt. Parveen D/o Wasik Kazi .. Petitioner
Versus
1. The State of Maharashtra
and 06 others .. Respondents
Shri S. K. Matpati, Advocate for the Petitioner.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 to 5.
Shri S. B. Ghute, Advocate for Respondent Nos. 6 and 7.
WITH
WRIT PETITION NO. 6726 OF 2017
Smt. Vidya D/o Bhalchandra Suryawanshi .. Petitioner
Versus
1. The State of Maharashtra
and 03 others .. Respondents
Shri V. M. Maney, Advocate for the Petitioner.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
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Pleader for Respondent No. 1 to 3.
Shri S. B. Ghute, Advocate for Respondent No. 4.
WITH
WRIT PETITION NO. 6750 OF 2017
Nandkishor Ramrao Markad
and 05 others .. Petitioners
Versus
1. The State of Maharashtra
and 03 others .. Respondents
Shri V. M. Maney, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 to 3.
Shri S. B. Ghute, Advocate for Respondent No. 4.
WITH
WRIT PETITION NO. 7812 OF 2017
Yuvraj Vitthalrao Powade
and 63 others .. Petitioners
Versus
1. The State of Maharashtra
and 04 others .. Respondents
Shri S. S. Kulkarni, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 to 3.
Shri S. B. Pulkundwar, Advocate for Respondent No. 4 and 5.
WITH
WRIT PETITION NO. 7851 OF 2017
Subhash Nivrutti Bhadange
and 23 others .. Petitioners
Versus
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1. The State of Maharashtra
and 04 others .. Respondents
Shri S. S. Kulkarni, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 to 3.
WITH
WRIT PETITION NO. 7815 OF 2017
Dipak S/o Ankushrao Londhal
and 19 others .. Petitioners
Versus
1. The State of Maharashtra
and 06 others .. Respondents
Shri S. K. Mathpati, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 to 5.
Shri S. B. Ghuyte, Advocate for Respondent No. 6 and 7.
WITH
WRIT PETITION NO. 7766 OF 2017
Nagnath S/o Laxman Gatkal
and 84 others .. Petitioners
Versus
1. The State of Maharashtra
and 03 others .. Respondents
Shri P. A. Bharat, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 to 3.
WITH
WRIT PETITION NO. 7041 OF 2017
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Bhalchandra Hiraji Choudhari
and another .. Petitioners
Versus
1. The State of Maharashtra
and 07 others .. Respondents
Shri S. G. Mundhe, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 to 4.
Shri S. B. Ghute, Advocate for Respondent No. 5 to 8.
WITH
WRIT PETITION NO. 6625 OF 2017
Maharashtra Shikshak Sanghatana
Zilla Shakha Dhule .. Petitioner
Versus
1. The State of Maharashtra
and 03 others .. Respondents
Shri S. S. Thombre, Advocate for the Petitioner.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 to 3.
WITH
WRIT PETITION NO. 8020 OF 2017
Arun Nivrutirao Wattamwar
and 26 others .. Petitioners
Versus
1. The State of Maharashtra
and 03 others .. Respondents
Shri M. P. Tripathi, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 and 2.
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WITH
WRIT PETITION NO. 8022 OF 2017
Vikas S/o Gangadhar Dongre .. Petitioner
Versus
1. The State of Maharashtra
and 05 others .. Respondents
Shri J. M. Murkute, Advocate for the Petitioner.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 to 4.
WITH
WRIT PETITION NO. 6022 OF 2017
Sandeep S/o Nanasaheb Shirkule
and 21 others .. Petitioners
Versus
1. The State of Maharashtra
and 05 others .. Respondents
Shri S. G. Mundhe, Advocate for Petitioners.
Shri V. J. Dixit, Senior Counsel i/by Shri A. B. Girase, Govt.
Pleader for Respondent No. 1 to 4.
Shri S. B. Ghute, Advocate for Respondent Nos. 5 and 6.
CORAM : ANOOP V. MOHTA AND
SUNIL K. KOTWAL, JJ.
DATE : 22ND JUNE, 2017.
ORAL JUDGMENT (Per Anoop V. Mohta, J.) :-
1. Rule. Rule returnable forthwith, heard finally by consent.
2. We are disposing off all these writ petitions, by a common
17 WP 6640.17
judgment as the petitioners/teachers of Zilla Parishad have
raised common and interlinked issues, and the contesting
respondents are common.
3. The petitioners, who are primary teachers of Zilla Parishad
Primary School of the respective district/area through the
association and in individual capacity, have filed these petitions,
thereby the State Government (the "State") resolution (the
"resolutions") dated 27th February, 2017 as modified on 15th April,
2017, 17/26/31, May, 2017 and 6/7/21 June, 2017 stated to be
illegal, unreasonable, arbitrary, discriminatory and violative of
Articles 14, 16 and 21 of the Constitution of India. The issues are
raised that these resolutions are contrary to the provisions of
Maharashtra Zilla Parishad and Panchayat Samiti Act, 1961 ("Z.
P. Act") and the Rules made thereunder, and to the earlier
government resolutions. Prayers are also made to declare these
resolutions bad in law and to retain the resolution dated 15 th
May, 2014. All in all a common challenge is raised to the new
transfer policy of Zilla Parishad school teachers announced by
the State.
4. There is no issue that all these teachers have been
appointed by respective Zilla Parishad/authority under the Z.P.
Act from time to time. They are under the service conditions of
the respective Zilla Parishad for all the purpose. The Zilla
18 WP 6640.17
Parishad/authority are required to follow the State
circulars/resolutions of such teacher issued from time to time.
The Z. P. Act defines various terms including "Block
Development Officer", "Chief Executive Officer", "Development
Scheme" as constituted under Section 4, "Executive Officer",
"Panchayat", "Resolution", "Relevant District Board" and "Zilla
Parishad". The power is also provided for abolition of district
and/or alteration/division in boundary/block. The power of State
to control the various affairs and to give directions through
various resolutions is not in dispute.
The limited scope of judicial review in State policy
decision:
5. The law with regard to the fundamental rights, revolving
around doctrines including "treating equals unequally",
'discrimination in creating class' and/or 'unreasonable
classification' or "discriminatory, unreasonable, arbitrary, illegal
decisions" are quite settled. The Apex Court in Air India
Limited: K. Amal Chopra : Prabha Rani : F. P. L. Tounghe :
Menka Nathani Vs. Nergesh Meerza : I.A.G. : I. A. C. : I.A.C.
: I.A.G. (1981 DGLS (SC) 389 : 1981 AIR(SC) 1829 : 1981 (3)
Scale 1275 has observed as under :
"39. THUS from a detailed analysis and clow
examination of the case of this Court starting
from 1952 till today, the following propositions
emerge :
19 WP 6640.17
(1) In considering the fundamental right or
equality of opportunity a technical, pedantic or
doctrinaire approach should not be made and the
doctrine should not be invoked even if different
scales of pay service terms, leave, etc. are
introduced in different or dissimilar posts.
THUS where the class or categories of service are
essentially different in purport and spirit,
Article 14 cannot be attracted.
(2) Article 14 forbids hostile discrimination
but not reasonable classification. Thus, where
persons belonging to a particular class in view
of their special attributes, qualities, mode
of recruitment and the like, are differently
treated in public interest to advance and boost
members belonging to backward classes, such a
classification would not amount to discrimination
having a close nexus with the objects sought to
be achieved so that in such cases Article 14 will
be A completely out of the way.
(3) Article 14 certainly applies where equals are
treated differently without any reasonable basis.
(4) Where equals and unequals are treated
differently Art. 14 would have no application.
(5) Even if there be one class of service
having several categories with different
attributes and incidents, such a category becomes
a separate class by itself and no difference or
discrimination between such category and the
general members of the other class would
amount to any discrimination or to denial of
equality of opportunity.
(6) In order to judge whether a separate
category has been carved out of a class of
service, the following circumstances have
generally to be examined:-
(A) the nature, the mode and the manner of
recruitment of a particular category from the very
start.
(B) the classifications of the particular
category.
(C) the terms and conditions of service of the
members of the category;
(D) the nature and character of the
posts and promotional avenues;
20 WP 6640.17
(E) the special attributes that the particular
category possess which are not to be found in
other classes, and the like.
40. IT is difficult to lay down a rule of
universal application but the circumstances
mentioned above may be taken to be illustrative
guidelines for determining the question.
6. The Supreme Court in Deepak Sibal Vs. Punjab
University and another (1989) 2 SCC 145 has observed in
paragraph 20, as under, keeping in mind Article 14 and the
allegations of unreasonable, discriminatory
rules/circulars/resolutions, and that, if the alleged clauses are
unseverable from the remaining part of the rule, the entire rule
must be struck down.
"20. In considering the reasonableness of
classification from the point of view of Article
14 of the Constitution, the court has also to
consider the objective for such classification.
If the objective be illogical, unfair and unjust,
necessarily the classification will have to be
held as unreasonable."
7. The Apex Court has endorsed as under in State of
Andhra Pradesh Vs. Mcdowell and Company Limited
(1996 DGLS (SC) 623 : 1996 AIR (SC 1627 : 1996 (3) JT 679 :
1996 (3) Scale 146, keeping in mind basic principles and power
of the State while enacting the law or publishing any circular,
resolution and taking any decision including the aspect of Article
14, 19(1)(g), 21 and 226 of the Constitution of India :
21 WP 6640.17
"Some or other constitutional infirmity has to be
found before invalidating an Act. An enactment
cannot be struck down on the ground that court
thinks it it unjustified. Parliament and the
legislatures, composed as they are of the
representatives of the people, are supposed to
know and be aware of the needs of the people and
what is good and bad for them. The Court cannot
sit in judgment over their wisdom. In this
connection, it should be remembered that even in
the case of administrative action, the scope of
judicial review is limited to three grounds,
viz., (i) unreasonableness, which can more
appropriately be called irrationality,(ii)
illegality and (iii) procedural impropriety [See
Council of Civil Services Union v. Minister for
the Services which decision has been accepted
by this Court as well]. The applicability
of doctrine of proportionality even in
administrative law sphere is yet a debatable
issue. [See the opinions of Lords Lowry and
Ackner in R.v. Secretary of State for the Home
Department Ex-parte (1991 A.C.696 at 766-7 and
762]. It would be rather odd if an enactment
were to be struck down by applying the said
principle when its applicability even in
administrative law sphere is not fully and
finally settled. It is one thing to say that a
restriction imposed upon a fundamental right can
be struck down if it is disproportionate,
excessive or unreasonable and quite another
thing to say that the Court can strike down
enactment if it thinks it unreasonable,
unnecessary or unwarranted."
8. The Apex Court in Om Kumar Vs. Union of India (2000
DGLS (SC) 1642 : 2000 AIR (SC) 3689 : 2000 AIR (SCW) 4361
: 2000 (Supp.3) JT 92 in para No. 66 has observed as under :
"It is clear from the above discussion that in
India where administrative action is challenged
under Article 14 as being discriminatory, equals
are treated unequally or unequals are treated
equally, the question is for the Constitutional
Courts as primary reviewing Courts to consider
correctness of the level of discrimination
22 WP 6640.17
applied and whether it is excessive and whether
it has a nexus with the objective intended to be
achieved by the administrator. Here the Court
deals with the merits of the balancing action of
the administrator and is, in essence, applying
'proportionality' and is a primary reviewing
authority."
09. The Apex Court in another judgment in Ekta Shakti
Foundation Vs. Govt. of NCT of Delhi (2006) 10 SCC 337
keeping in mind the power and requirement of Government to
take any new policy decision, the scope of judicial review in such
administrative action, has been crystallized/reiterated in the
following words.
11. "5 While exercising the power of judicial
review of administrative action, the Court is not
the appellate authority and
'[t]he Constitution does not permit the Court
to direct or advise the executive in matter of
policy or to sermonize any matter which under
the Constitution lies within the sphere of the
Legislature or the executive, provided these
authorities do not transgress their
constitutional limits or statutory power. (See
Ashif Hamid v. State of J. & K. SCC p. 374 para
19, Shri Sitaram Sugar Co. v. Union of India.)
The scope of judicial enquiry is confined to the
question whether the decision taken by the
Government is against any statutory provisions or
is violative of the fundamental rights of the
citizens or is opposed to the provisions of the
Constitution. Thus, the position is that even if
the decision taken by the Government does not
appear to be agreeable to the Court it cannot
interfere.
6. The correctness of the reasons which
prompted the Government in decision making, taking
one course of action instead of another is not a
matter of concern in judicial review and the Court
23 WP 6640.17
is not the appropriate forum for such
investigation.
7. The policy decision must be left to the
Government as it alone can adopt (sic decide)
which policy should be adopted after considering
all the points from different angles. In matter
of policy decisions or exercise of discretion by
the Government so long as the infringement of
fundamental right is not shown Courts will have no
occasion to interfere and the Court will not and
should not substitute its own judgment for the
judgment of the executive in such matters. In
assessing the propriety of a decision of the
Government the Court cannot interfere even if a
second view is possible from that of the
Government.
8. The Court should constantly remind
itself of what the Supreme Court of the United
States said in Metropolis Theatre Company v. City
of Chicago (L. Ed. p. 734).
"The problems of Government are practical ones
and may justify, if they do not require, rough
accommodations, illogical it may be, and
unscientific. But even such criticism should
not be hastily expressed. What is the best is
not always discernible, the wisdom of any
choice may be disputed or condemned. Mere
errors of government are not subject to our
judicial review. (See: State of Orissa and
others v. Gopinath Dash and Others SCC 497,
paras 5-8).
17. It is not the case of the petitioners that with
any oblique motive the eligibility criteria has been
stipulated. On the contrary after analyzing the
issues, a Committee appointed by the respondent had
suggested the norms and the schemes was accordingly
prepared. We do not find any irrationality much less
something which is totally out of context to justify
interference.
10. The Apex Court recently in a case of Binoy Viswam Vs.
Union of India and Others MANU/SC/0693/2017 dated
09.06.2017 reiterated the above position of law in following words:
24 WP 6640.17
"96. What follows is that Article 14 forbids
class legislation; it does not forbid
reasonable classification of persons, objects
and transactions by the Legislature for the
purpose of achieving specific ends.
Classification to be reasonable should fulfil
the following two tests:
(1) It should not be arbitrary,
artificial or evasive. It should be based on
an intelligible differentia, some real and
substantial distinction, which distinguishes
persons or things grouped together in the
class from others left out of it.
(2) The differentia adopted as the
basis of classification must have a rational
or reasonable nexus with the object sought to
be achieved by the statute in question.
Thus, Article 14 in its ambit and sweep
involves two facets, viz., it permits
reasonable classification which is founded on
intelligible differential must have a
rational relation to the objects sought to be
achieved. Further, it does not allow any
kind of arbitrariness and ensures fairness
and equality of treatment. It is the
fonjuris of our Constitution, the
fountainhead of justice. Differential
treatment does not per se amount to violation
of Article 14 of the Constitution and it
violates Article 14 only when there is no
reasonable basis and there are several tests
to decide whether a classification is
reasonable or not and one of the tests will
be as to whether it is conducive to the
functioning of modern society."
The background of urgent hearing :
11. The teachers have challenged the resolutions at various
benches of this High Court, immediately after publication of list
of teachers by all the concerned respondents, who are due and
eligible for transfer, but before the receipt of any transfer orders.
In some matters it is directed to maintain status-quo with
25 WP 6640.17
regard to posting of teachers till next date. However, permitted
the respondents to proceed with the procedure formulated under
impugned resolutions. Similar types of orders dated 25th May,
2017 passed at Bench at Aurangabad in vacation. The High
Court has issued notices in other writ petitions. Nagpur Bench
of this Court in Writ Petition No. 2939 of 2017 on 19 th June, 2017
in association petition, referring to the challenge to the
resolutions has vacated interim orders dated 03 rd May, 2017 and
17th May, 2017 and permitted the respondents to issue transfer
orders. They have observed that individual petitioners are free
to file appeal as provided for in the resolution.
12. In view of the urgency so expressed, matters are listed by
the consent of the parties for final disposal as issues are
revolving around five lakh teachers in the State. The
respondents submitted to take decision at earliest so that policy
decision so taken need to be implemented before 30 th June, 2017.
This would enable the teachers to resume their duties at
respectable places as the academic session has already
commenced. The order of status-quo hampering their further
action of transfers. The State and all the concerned authorities of
the respective area have been acting upon the same. All the
teachers who are in service of Zilla Parishad have already acted
upon it by submitting their details in the format annexed to the
resolutions. To achieve the object of the transfer policy so
26 WP 6640.17
announced, everyone has to act promptly.
No reason to interfere with the teacher transfer
policy :
13. We have permitted respondents to file affidavit in reply.
Respondent Nos. 1 and 2 (Writ Petition No. 6640 of 2017 and
others) have filed affidavit-in-reply on 16 th June, 2017. Similar
affidavit is filed in other matters also. Some petitioners through
association and by individuals have filed petitions without even
receipt of any transfer orders based on the policy/resolution.
Actual effect and/or grievances of the respective
petitioner/teacher need to be tested on individual grievance basis
and not in general. The state policy with regard to power of
respective employer, State, Zilla Parishad to transfer the teacher
from one place to another and/or district to another and/or hilly
area to general area covering the aspect of tenure at one place on
administrative reason and/or couple convenience and/or by giving
specific importance to the class or classes of person, is well
within the knowledge of all the concerned. All the individual
teachers are bound by the service conditions which include the
power of respective employer/Zilla Parishad, to transfer the
teacher, within the framework of declared policy, from time to
time. The very challenge on behalf of such teacher association
itself is unacceptable.
27 WP 6640.17
14. The point/issue so raised need to be tested on the actual
foundation of individual grievances of the respective teachers,
not at the instance of the association's. Preparation of list of
eligible teachers for transfer that itself can not be the ground to
entertain the petition, when admittedly the teachers have not
even received any transfer order. It is premature stage. We have
to consider the challenge so raised in above situation, whereby
submission is made to test the merits and demerits of the
resolutions, including its constitutional validity or illegality so
stated. It is relevant to keep in mind the above settled principles
of law, when and under which circumstances the Court can have
a judicial review of the State resolutions and or policy decision of
such general/mass transfer of teachers. Those judgments are
noted in the earlier paras itself.
The Education policy and its urgent Implementation :
15. The Right of Children to Free and Compulsory Education
Act 2009 (the RTE Act) and regulations as amended from time to
time, and the The Right of Children to Free and Compulsory
Education Rules 2010 (The Rules) are with intention to provide
for free and compulsory education to all children of the age of six
to fourteen years and strengthen the education system through
out India, keeping in mind power and authority of respective
States to control, govern and regulate the education system. It
deals with the duties of the appropriate Government, local
28 WP 6640.17
authority and parents read with responsibility of schools and
teachers about the curriculum/elementary education. The Act
and Rules also deals with school management and responsibility
of schools and teachers. The power to take appropriate steps to
fix and finalize staffing pattern and related activities, is also
provided. The State keeping in mind those provisions for taking
steps from time to time. Even under the RTE Act, schedule and
norms and standards of schools has been provided including
teachers-student ratio for the respective classes. Every
concerned department, officer need to proceed on the basis of this
Act and the time to time declared related State resolutions,
which includes the transfers, absorption of teachers as per the
strength of students and/or under a particular
school/institution/taluka/district.
16. The provisions of the RTE Act, Zilla Parishad Act and the
circulars so issued covering various facets including of the
teacher transfer, apart from judgment/orders passed by the Court
based on then existing transfer policy need to be read together.
The State Government's obligations/responsibility to take
effective steps to bring uniform education policy, which includes
important role of management and teachers, keeping in mind
right of children to free and compulsory education just cannot be
overlooked. The State has, therefore, empowered and required to
take appropriate steps from time to time to bring uniform
29 WP 6640.17
education policy. Therefore, the decision, so taken in bringing
new transfer policy, cannot be disturbed at the instance of these
teachers, who have admitted not even received any transfer
orders. All these challenges are without foundation of individual
merits are premature.
17. The submission that any one can challenge any
Government policy, at any time, is not acceptable, basically when
it comes to the State transfer policy, published in advance in
February 2017 itself, so that appropriate steps/orders can be
initiated before the commencement of academic session.
Object & Purpose of the Policy :
18. The recent policy decision is taken in the interest of
teachers working through out the state to bring in more
transparency in the process of transfer. All the teachers working
at their respective places in hard area and/or
general/normal/easy area, required to be treated equaly. The
difficulties faced by the teachers individually and/or couple
and/or working in hard area and/or long tenure at one place,
request transfer and/or couple convenience transfer and/or
personal reason and/or revocation of transfer for certain classes
of people have been noted. The restriction of transfer and/or
giving preference to particular class of teacher while passing the
order of transfer, have been in existence since long. The same
30 WP 6640.17
has been re-streamed with a view to have a uniform workable
policy and to lesson the human interference while dealing with
the process of transfer and/or passing of transfer orders. The
policy's aim of computerization of the process in view of the huge
number of teachers involved, so also for the proper management,
keeping in mind the requirement of staffing pattern, in no way
can be stated to be unjust, unreasonable, arbitrary and/or
contrary to the existing policy and/or law. Every one concerned,
is required to keep in mind the role of teachers for up-bring of the
students/children. But at the same time, these teachers being
employees of the Zilla Parishad, the authority and power given to
the Chief Executive Officer, who is appointing authority need to
guided properly. No one can insist and/or seek any directions
from the Court, that the Government is bound to continue with
the existing policy as a matter of right, so far as the aspects of
such transfer.
Reasonable Classification to Achieve Object :
19. We have gone through the earlier resolutions, so referred in
the impugned resolution and through the contents of the
resolutions as amended from time to time. The impugned
resolution is nothing but further steps to implement the transfer
policy, which required to be fixed based upon various
representations and the grievances so raised by the respective
teachers/employees/institutions. Uniformity is necessary keeping
31 WP 6640.17
in mind the provisions of the acts so referred and as the teachers
are special and important class of society are required to be delt
with cautiously. The decision so reflected, in no way can be
stated to be with any ulterior motive and/or unreasonable and/or
arbitrary and/or discriminatory and/or violative of Article 14, 16
and 21 of the Constitution of India and the provisions of the RTE
Act and/or in conflict with earlier resolutions so referred above
including resolutions dated 18.04.2013, 24.10.2013, 15.05.2014,
12.07.2014, 12.01.2017.
20. We have noted that, such teachers are already recognized
as a class, not only by this resolution and/or decision, set by
earlier resolutions. Admittedly, on the date of appointment itself,
they were made known the condition of their services, which
includes the transfer and/or related aspects. For all services
purposes, they will be governed by the existing provisions of law
and the service conditions including the misconduct and/or
enquiry, so referred and required to be initiated in case, there is
breach and/or non compliance of the orders including the transfer
orders so mentioned in the resolutions itself.
21. The reference is made to various judgments in support of
the contentions that such classification and/or creating a
different class of teacher is in contravention to the provisions of
the R. T. E. Act and Article 14, 16 and 21 of the Constitution of
32 WP 6640.17
India. We are not inclined to accept this submission as this
classification has been in existence since long. It is well known
within the field in question. All have been acting upon the same
since long. Other employees of the Zilla Parishad cannot be
treated and/or falls within the ambit of teacher, who are basic
elements for imparting education to the children/students in
respective schools/institutions. We are of the view that, treating
this class separately by giving importance to every aspect of such
teachers including the difficulties and the grievances, so referred
and raised from time to time and at the same time in the interest
of running uniform education pattern in the State cannot be
stated to be arbitrary and/or unreasonable. The judgments so
cited by the learned counsel appearing for petitioners, itself lay
down the position of law clear that the State Government and/or
concerned authority has always power to recognize this class
and/or to make reasonable classification to achieve the aims and
objects of the policy so declared. The classification so raised is
justifiable. The demarcation of such teachers is in existence in
Group - C (Class - III) and Group - D (Class IV) employees
cannot be stated to be unconstitutional and/or illegal. This is
also for the reason that, there are teachers, who have been
supporting the policy decision as it has taken the care of long
pending grievances. The decision of the Government to stream
line all the grievances, which is in the interest of all the
concerned. At the instance of some teachers, whole policy of the
33 WP 6640.17
classification so reiterated, which is in existence since long need
not be interfered with.
Other Specific Features of the Policy :
22. The earlier tenure of teacher at one place initially with
three years or four years was well known. Those resolutions are
always kept in mind while taking transfer policy decision. There
is no issue that, from time to time the tenure and/or fixed period
at one place/taluka/district has been noted/modified and all the
concerned parties have acted upon it. The individual grievances
based upon malafides and/or are always matter of discussion and
debate including in Courts. It is made clear in the circular itself
that, they would take various steps as declared to implement the
transfers. It is obligatory, therefore, for the concerned
respondents to keep in mind other classes and the procedure so
mentioned in the resolution before passing the transfer orders or
based upon the final list. All the concerned teachers have
already submitted the details and opted for 20 places in on-line
process through the official website including
www.edustaff.maharashtra.gov.in. All the resolutions/circulars
are available on the official website of the Government of
Maharashtra namely (www.maharashtra.gov.in).
23. Therefore, at this stage, unless specific and individual
orders are made out, it is difficult to accept the case of petitioners
34 WP 6640.17
that, in pursuance to this declared policy, every teacher who has
completed ten years of service will be transferred every year. The
State having taken decision to give importance to the smooth
running of schools or educational institutions and the alleged
repeated transfers in short duration, on every occasion, will not
be in the interest of any one. Though in a given case for
administrative reason and exigency, they may pass orders.
However, it is made clear that, in view of impugned policy dated
27.02.2017 and as amended from time to time, being a new policy,
some orders, even if passed having effect of immediate transfer,
such grievances may be considered in individual cases. The
power of Government or the respondent to transfer based upon
this policy is in no way, can be stated to be unreasonable and/or
arbitrary.
24. We have noted that, the State/authorities required to
consider the clauses, about the option so provided and the rider
that every teacher would not be transferred. It will depend upon
facts and circumstances and the vacancies and the requirement
so contemplated under the resolution. The apprehension, even if,
just cannot be gone into at this stage without considering
individual grievances. No Government resolution or policy can
be challenged merely on the basis of assumption and
presumption, without material and the cause of action. The
change in policy of giving importance of ten years, in no way, can
35 WP 6640.17
be stated to be arbitrary or unreasonable. Actual
implementation and its effect, has not yet occurred, therefore, at
this stage, no reason to interfere with the policy so declared.
Hard area or Easy/General area :
25. The definition of hard area and not hard area is not the
foreign concept. Earlier circulars itself refer and deal with the
same, and the parties have been acting upon it. The judgments
so referred to, recognizing such areas. The concerned
officers/department need to take note of the judgment/orders
passed by this Court in this regard. The challenge and the
submission that in defining hard area and/or general/easy area
itself would create complications for want of specific and clear
guidelines. After going through the earlier circulars as well as
those resolutions, we are inclined to observe that, the Chief
Executive Officer (C. E. O.) who is appointing authority of such
teachers and who is incharge of district required to take note of
various elements before declaring such areas as specified area.
The concept of difficult area is known. The resolution itself
provides the basic elements, which required to be taken note of
by such officers before taking such decisions. The impact of such
decision and/or declaration of hard area and/or non
hard/easy/general area on the teachers/employees working in the
respective area of the district, is clear. We are inclined to observe
that, though it is necessary for the State to have a clear specific
36 WP 6640.17
and in detail guidelines, which should be used and utilized by the
concerned officers before taking such decision based upon facts
and material need to be provided. We are inclined to observe
that, the elements and the power and the authority of the C. E.
O. as provided, in no way can be stated to be bad in law, unjust
and/or contrary to any provision. It is made clear that, in case
any arbitrariness and/or any decision taken contrary to the
provisions and/or material, it will be tested at appropriate case
and in appropriate circumstance, but to say that the power so
given is contrary, unjustifiable and the decision so taken by the
authority is without guidelines is not acceptable. On this ground
also we cannot declare the resolution bad, unjust and contrary to
the law.
Earlier Scheme - Percentage :
26. We have considered the whole policy which has been
introduced keeping in mind the clauses so referred in the
resolution to give proper effect, the new scheme so announced
and for that if decision is taken to delete the fixed percentage of
transfer which, in our view, itself cannot be a reason to say that
the impugned resolution/policy decision is bad in law. The State
while framing the policy require to add/alter/modify the
resolutions and the procedure. They are ultimately the final
authority. In any way, at the petitioners' insistence or
submission to continue with the earlier percentage of transfer is
37 WP 6640.17
unacceptable. No right or entitlement is pointed out for
continuation of such policy and/or the clause. Having once noted
all the clauses which are interlinked/inter connected and to
implement the same, the government has modified the earlier
resolutions of its scheme to certain extent and for proper
implementation of the present scheme such decision, if taken
which, in our view difficult for this Court to interfere with the
same policy decision.
Couple convenience versus individual teachers :
27. The concept of couple convenience as noted has been in
existence since 2001 as reflected in resolution dated 27 th March,
2001. Further endorsed in resolution dated 18 th April, 2013.
These resolutions also endorse the distance of thirty kilometers
so prescribed since inception with concept of couple convenience.
28. The facet of couple convenience is also well known in the
field. This is not for the first time such concept is introduced,
keeping in mind restriction of 30 K.M. distance. Earlier
resolutions itself refer to this 30 K.M. distance. There was no
such challenge made at earlier point of time. The submission
that a discrimination is created by creating a class referring to
these 30 K.M. by excluding the others who are within 30 K.M.
and/or individuals, even otherwise, is unacceptable. The couple
convenience concept is definitely well within the framework of
38 WP 6640.17
policy decision and in the interest of particular couple class.
there was no such earlier challenge that, this creation of couple
convenience is bad in law and/or unjust or unreasonable. It is
made clear that, ultimately at the time of passing transfer
orders, the concerned officer is required to consider all the
elements so provided. There is no uncertainty as stated while
fixing the distance as 30 K.M. for deciding the couple convenience
issue. We cannot interfere and disturb this aspect merely for
asking, even by the couple petitioners. The individual grievances
if any required to be tested when occasion comes. But on
assumption and presumption such clause cannot be declared as
bad in law.
29. The submission that, such convenience is not taken note of
individual teachers of the class is created by carving such special
class or privilege to the couple is unacceptable. The couples who
are within 30 K.M. and who are out side 30 K.M. itself has
created discrimination and/or arbitrariness is the contention. As
noted, this concept of couple convenience within or outside 30
K.M. is in existence since long, but remained unchallenged.
Some boundary is required to be fixed by the State and even
otherwise to implement such policy decision of transfer. There is
no scope for judicial review, at the instance of petitioners on the
basis of assumption and presumption and/or general allegations.
We see no case is made out, even to disturb this created class
39 WP 6640.17
and/or policy.
Publication of list based upon option/seniority :
30. As per the scheme, the teacher is required to submit the
details as per the published scheme. In this process the
State/Zilla Parishads have collected all the material data,
including the date of appointment, seniority, tenure of post at
one place in hard and in general area. Therefore keeping in mind
the education pattern/staffing patter and the requirement of
particular school or teacher based upon the students strength a
proper and general decision can be taken. This procedure cannot
be stated to be arbitrary, unreasonable or contrary to the
provisions of any law. The interest of specific class of teachers is
taken care of within the framework of law including the
constitutional provisions. The concept of providing 20 option in
the form ultimately stream line and supports the authority to
take and/or pass transfer orders. This mechanism definitely
reduces/lessons the human interference. There are about four to
five lacs of teachers are involved. It is difficult for any
department to collect physically all the data at one stroke, before
passing any such transfer orders. However, in view of this
transparent policy substantial material/data is available to give
effect to pass effective transfer orders. Some liberty and
leverage, in our view, therefore, is required to be given to the
concerned appointing authority, specifically when scheme is
40 WP 6640.17
introduced by modifying earlier circular for the first time through
the impugned resolution. This is no way read that the authority
can act upon beyond the provisions of law.
Provision of representation/objection to the list :
31. The resolutions itself provide a mechanism to raise
objection at appropriate stage. One is after publication of list by
the Education Officer of the Zilla Parishad in each district. The
objection to the list is required to be considered before declaring
the final list. The final list would be used and utilized for all
transfer orders. The Education Officer is required to deal with
the objection, if any, in accordance with law. The objection if not
raised, the list attains finality for all further purposes. The
department is required to proceed on the basis of it.
32. In the present cases, resolution is announced in February
2017. The respective lists were published by the respondents'
officers some time in May/June 2017. The publication of list
pending writ petitions, even if any and/or otherwise cannot be
disturbed.
33. It is necessary to note the High Court while passing the
interim orders, permitted the respondents to proceed with the
procedure so announced. The status quo was restricted only to
the posting orders. Therefore, every one concerned are aware of
41 WP 6640.17
the contents of resolution and its effect. There was no prevention
or bar by any order of not raising objection at appropriate time.
The Education Officer is required to consider objection, if filed
with the period schedule so announced. As noted, the Education
Officer, even if rejects the objection, appeal is available before the
Chief Executive Officer within five days, such decision will be
final. Once list is prepared as announced, the concerned
respondents need to take timely action to implement the transfer
policy, so announced, as education session required to be started
as announced by all the concerned.
Appeal/Representation against the Transfer Orders :
34. The important facet of availability of any further forum,
once the transfer orders are passed and/or likely to be passed not
specifically reflected in resolution of 27.02.2017. To redress the
grievance about illegal and impermissible transfer order a
remedy is required. By subsequent resolution dated 15.04.2017
even prior to filing of these basic writ petitions in May it is
provided or it is made clear that such transfer orders or
irregularity and/or grievances if any permitted to be agitated
before the respective Divisional Commissioner of the Revenue
Division. It is provided that the Divisional Commissioner to take
decision within 30 days, and that decision will be final. The
learned senior counsel appearing for the respondent/State on
instructions and considering the basic requirement of availability
42 WP 6640.17
of such forum to consider the individual grievance of aggrieved
teacher/party, after receipt of transfer orders makes the
statement that the Divisional Commissioner of the respective
revenue divisions will accept and/or entertain such
objection/representation/appeals and deal with the same in
accordance with law as early as possible, keeping in mind the
intended resolution and the urgency of the situation. This, forum
is required to be given importance as various factual
irregularities/grievances of each and every individuals, just
cannot be gone into for the first time in the writ jurisdiction. The
availability of such forum/authority and in view of above is
sufficient to take interest of aggrieved teachers on merits of the
transfer orders. The issue, therefore, of non availability of any
forum and/or no procedure prescribed to make representation, as
recorded above concludes the situation possitively. Therefore, on
this ground no case is made out to interfere with the resolution.
Misconduct/disciplinary action, if transfer order is
not complied with :
35. The resolution provides mechanism, in case if there is non
compliance of transfer orders by the individual teachers. The
aspect of misconduct refers only to the individual persons. The
grievances revolving around individual transfer orders cannot be
considered on the basis of general averment so made by the
association or individuals before receipt of transfer orders. The
43 WP 6640.17
concerned persons/employee/teachers after receipt of transfer
order, if failed to comply with the same, the resolution clauses
are very clear referring to the disciplinary proceedings as
contemplated under the provisions of the Maharashtra Zilla
Parishads District Services (Disciplinary Action and Appeal)
Rules, 1967. Clause 6 and 7, how this clause can be said to be
unjust, arbitrary and contrary to law. It is necessary to
observe that, it is also clear that teachers are not government
servants as sought to be contended. The teachers are the class
itself, governed by the provisions of the Z. P. Act. The
disciplinary proceedings based upon any such misconduct,
therefore, required to be dealt with in view of above provisions
only.
The detailed procedure is prescribed to implement
the transfers :
36. After considering rival contentions and after going through
the contents of the resolutions, we have also noted that, apart
from above, there are detailed procedures prescribed to take
steps to implement the resolutions including the collecting
requisite data and material before passing the transfer orders.
There is no procedural lacuna and/or irregularity, which goes to
the root to declare the whole process as bad, unjust or contrary to
any law.
44 WP 6640.17
Preparation of seniority list and/or existing
seniority list :
37. It is clear from the resolution that transfer depends upon
the seniority list of teachers of specific class holding right of
transfer and/or eligibility for transfer. Teachers have been
provided with choice of twenty places if any vacancy is available
as per the choice earlier given by them. By determination of
seniority has also been explained and certain categories of
teachers are added in special class. List of transferable vacant
posts also required to be published. Category of teachers eligible
for transfer and teacher holding right to transfer is in the
interest of all. The teachers who have worked continuously in
general area for a period of ten years are eligible for transfer and
also the teachers who have worked continuously for a period of
three years in difficult area. In view of this resolution, therefore,
it will be feasible for the concerned authorities to take decision to
transfer eligible teachers as per the vacancy available and the
seniority list. The teachers of Zilla Parishad required transfer in
various schools in view of increase or decrease of strength of
students and requirement to achieve uniform teaching pattern,
the scheme framed.
38. For proper implementation and considering the scheme
and the purpose of this resolution and the policy decision and
even otherwise to have a seniority list based upon the data
45 WP 6640.17
collected, which will definitely useful to implement effectively
declared policy in no way can be said to be unjust and/or
unreasonable. The respondents required to take note of seniority
and how to implement it keeping in mind the provisions is again
matter of individual challenge, if any. But at this stage, on that
ground also it is difficult to disturb the resolution. The
preparation of list taluka wise and/or district wise is again
subject to actual and factual implementation of the resolution.
The decision if taken through the policy to give effect to transfer
by 31st May 2017 and to take effective steps in this regard, in our
view, this cannot be tested and/or interfere at the instance of
petitioners.
Earlier High Court Orders :
39. The resolutions itself deal with various orders passed in
writ petitions, based upon then existing policy or resolution. The
government/respondent is required to implement and give effect
to the resolutions, keeping in mind various orders so passed by
the Court. Even, otherwise, we are dealing with present decision
so declared on 27.02.2017 and to bring in all the requisite
element and to give effect to the same, which in our view within
power and purview of the authorities/State, and create no hurdle
of any sort. The employees/teachers, who are transferred based
upon the orders passed by this Court prior to this resolution
and/or based upon earlier policy are also required to submit their
46 WP 6640.17
details as per the resolutions. There is no reason that, they would
not submit the details. The respondent/State, however, will
consider the orders and/or such cases on individual basis, if
required in view of new policy and appropriate orders need to be
passed for proper implementation of the scheme and the orders of
the Court. The Government has in the resolution itself made
clear that, they will respect the orders passed by the High Court
and will pass transfer order keeping in mind the requirement of
transfer between the period 01st May to 31st May of every year.
Inconvenience/hardship/difficulties to individual
teachers :
40. Any transfer orders, though the service is transferable,
new policy once declared and the concerned employer if take
decision on administrative reason and/or exigency and/or
otherwise including the request transfer to adjust or
accommodate one teacher or other and/or exchange transfer, is
always matter of debate and individual challenge. As the law
with regard to transfer is clear, except in exceptional and
extraordinary circumstances and/or if case is made out to
interfere the Court to pass protective orders in favour or against
the parties/petitioners. The earlier orders of Court, no way can
be read to the effect that, it is permanent order and Court has
passed order of giving permanent post to the teacher. The scope
of judicial review as settled in such matter need no discussion. It
47 WP 6640.17
is settled. The individual petitioners, if make out a case on
various facets/grievances, the Court is required to consider it, as
and when occasion arises, subject to completion/exhaustion of all
appropriate remedy available under the service condition and/or
resolution. This is also for the reason that, various facets and
facts are involved, where concerned department need to answer
and deal with the same. The respective representations, even if
pending need to be dealt with in accordance with law. The
transfer order once issued as per the scheme required to be
followed/implemented to its logical extent by all the concerned.
Deletion of Counseling Method/Teacher Cadre :
41. Having once noted the importance of the resolution and its
effect the submission that to continue to to restore the counseling
method, is ultimately, the State's policy decision. We cannot
direct to add or delete or restore clauses as prayed for the reasons
so recorded above. So is the case of deletion of the teacher cadre
from the resolution dated 15.05.2014. The resolutions cannot be
dissected in part as prayed it creates more complications than
solving it.
Management/Institutions challenge for further order
of teachers' unsustainable :
42. Petitions so far as managements are concerned,
considering the scheme and object of the resolution is not
48 WP 6640.17
maintainable as they are not concerned with such teachers
transfer orders. They will not be effected by individual transfer
order issued to the concerned teacher. In our view the challenge
to the resolution is unsustainable, cannot be considered at the
instance of the Management/Institutions.
Conclusion :
43. The individual grievances and/or difficulties and/or
submissions based upon the actual material required to be tested
as and when transfer orders are passed. The implementation of
the resolutions is not stayed by any Court, though specifically
prayed. On the contrary the Court while passing order of status
quo restricted only to the posting and not to the further
procedure.
44. For the reasons so recorded, as no case is made out of
violation of any fundamental rights and/or statutory rights,
and/or of legislative competence, there is no need to interfere
with the impugned resolutions. We have also noted, there is no
unreasonableness. There is no illegality and/or any procedural
impropriety. Therefore, there is no question of treating equal
unequally. The classification, in our view is reasonable to
achieve aim and object of the education and related transfer
policy based upon the RTE Act and/or related uniform education
mechanism, required for the teachers in the State of
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Maharashtra.
45. We are inclined to observe that, the merit of minimum
tenure and the demerit of frequent transfer needs to be kept in
mind by the State/Authority. The Apex Court in T.S.R.
Subramanian and others Vs. Union of India and others
[(2013) 15 SCC 732 has considered this aspect. The scope of
judicial review in transfer and posting matter is quite limited,
unless case is made out.
All Interim Orders are Vacated :
46. As noted, petitioners through association and individually
have filed the writ petition before the receipt of any transfer
order. The Court only permitted respondents to continue with
the procedure in the month of May itself. There was no hurdle of
any type and therefore respondents and its officials to proceed to
implement the resolution.
47. Final list now published in the month of May/June. There
was status-quo with regard to issuance of posting only in respect
of individual petitioners, and not for others. The State/concerned
authorities required to take steps as the schools are already
open. We are inclined to pass specific order of vacating the
status-quo order so passed in the respective petitions. We are
inclined to observe that for the reasons so recorded above, the
State/concerned authorities require to take effective steps to
50 WP 6640.17
implement the impugned resolution dated 27 th February, 2017
and as amended from time to time and proceed accordingly in the
interest of all concerned.
48. Therefore following order:
O R D E R
(a) Impugned Government Resolutions dated 27th
February, 2017 and as amended from time to time
are valid and well within the framework of law.
(b) The State and the authorities to proceed
further to implement the resolutions, in question
forthwith.
(c) Liberty is granted to the petitioners/teachers
to approach the appropriate appellate authority i.
e. the Divisional Commissioner or such authority
after receipt of individual transfer orders. The
Divisional or such Authority to deal with the
representation and/or appeal, if filed as early as
possible. The State to take steps to provide an
appropriate machinery to deal with such
appeals/representations to avoid further delay in
the respective matters.
(d) The individual grievances/problems after
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decision of the Divisional Commissioner may be
tested, if an appropriate case is made out within
the frame of law of transfers, by invoking remedy
available under the law.
(e) All petitions are dismissed accordingly with
above observations. No costs.
(f) The parties to act on authenticated copy.
49. Learned Counsel for petitioners submitted to continue
orders of status-quo as already granted in the respective
petitions. Considering the reasons so recorded and for the fact
that schools are already started, we are not inclined to continue
with the orders of status-quo so passed only in favour of few
teachers. We have to consider the interest of all the concerned.
Request to continue order of status-quo is therefore rejected.
50 Interim orders passed by the Courts in all the writ
petitions, if any, of non-issuance of posting orders stand vacated.
The respondents to proceed further accordingly.
Sd/- Sd/-
[SUNIL K. KOTWAR, J.] [ANOOP V. MOHTA, J.]
bsb/June 17
