Rekha Eknath Shinde vs The State Of Maharashtra And ...
2021 Latest Caselaw 7366 Bom

                                   {1}                WP 5894 OF 2018


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD


                       WRIT PETITION NO.5894 OF 2018

 .        Rekha D/o. Eknath Shinde
          Age: 30 years, Occupation: Asst. teacher,
          R/o. A-122, K-90/5, Pawan Nagar,
          Cidco, N-9, Aurangabad.                  ..Petitioner

                                 VERSUS

 1.       The State of Maharashtra
          Through Principal Secretary,
          Rural Development Department,
          Mantralaya, Mumbai - 32.

 2.       The Principal Secretary,
          School Education Department,
          Mantralaya, Mumbai.

 3.       The Commissioner of Education,
          Maharashtra State Pune.

 4.       The Zilla Parishad Aurangabad
          Through its Chief Executive Ofcer,
          Aurangabad.

 5.       Education Ofcer,
          Zilla Parishad, Aurangabad.                 ..Respondents

                                   ...
            Advocate for Petitioner : Shri Devidas R.Shelke
         AGP for Respondent Nos.1 to 3 : Smt.M.A.Deshpande
        Advocate for Respondent Nos.4 & 5 : Shri S.B.Ghute Patil
                                   ...

                                 CORAM :    UJJAL BHUYAN &
                                            M.G.SEWLIKAR, JJ.

RESERVED ON : 28-04-2021 PRONOUNCED ON : 07-05-2021

{2} WP 5894 OF 2018

JUDGMENT:- (Per: M.G.Sewlikar, J.)

1. Rule. Rule made returnable forthwith.

2. Heard fnally with consent of the parties.

3. This is a petition seeking quashing of Government

Resolution dated 27th February, 2017 to the extent that it

provides husband wife aggregation beneft only to those couples

who are in Government and Semi Government service and not to

those employees, whose spouse/s are engaged in private service

or profession and also seeking direction that the beneft of

Government Resolution dated 27th February, 2017 be extended

to the petitioner.

4. Factual matrix involved in this petition is that petitioner

joined services with respondent No.4 as 'Shikshan Sevak' on 11 th

October, 2007, whereafter, she was posted at Pishor in Tahsil of

Kannad, District Aurangabad. Petitioner was confrmed as

Assistant Teacher on 16th October, 2010. After serving for four

years at Pishor, petitioner was transferred to Ranjangaon (SP),

Tq.Gangapur, District Aurangabad. Husband of petitioner is in a

private profession at Aurangabad. Family of petitioner consists

of her husband, her fve year old son and her in laws and all of

them live at Aurangabad.

{3} WP 5894 OF 2018

5. It is the case of petitioner that in the transfer process of

May, 2018, petitioner was placed in category 4. This is the

category meant for junior most Teachers. Petitioner further

submits that the Government by Resolution dated 27th February,

2017 foated a scheme called 'Husband Wife Aggregation Policy'

by which husband and wife can be posted within a distance of 30

kms. However, this scheme covers only Zilla Parishad

employees, State Government employees, Central Government

employees, employees in Autonomous Bodies, employees in

Public Sector Undertakings or employees in Government

Recognized Institutions. Spouses of Zilla Parishad employees,

who are working in private profession or in private service are

excluded from the purview of this resolution. It is alleged that

this resolution is discriminatory as it has left out the spouses of

Zilla Parishad employees, who are employed in private sector or

engaged in a profession. This policy is arbitrary. It has created

two classes (i) Zilla Parishad employees, whose better halves are

in Central/State Government/Public Sector Undertakings/

Autonomous Bodies etc. (ii) Zilla Parishad employees, whose

better halves are serving in private sector or engaged in a

profession. Such classifcation is not based on any intelligible

differentia and has no nexus with the object sought to be

achieved. Therefore, this policy is arbitrary and violates the

{4} WP 5894 OF 2018

principles of equality enshrined under Article 14 of the

Constitution of India.

6. Petitioner, therefore, made an application making a request

that beneft of 'Husband Wife Aggregation Policy' be extended to

her for the reason set out in the application dated 25 th May,

2018. According to the petitioner, the postings within 30 kms.

distance from Aurangabad have been given to senior Teachers.

Petitioner fgures at Sr.No.2968 in total strength of Teachers of

3137. Petitioner was transferred to Amkheda, Tq.Soygaon,

Dist.Aurangabad. During the pendency of this petition, petitioner

was transferred to Waluj, Tq.Gangapur, Dist.Aurangabad, which

is 65 kms. From Aurangabad. She has, therefore, sought

quashing of Government Resolution dated 27 th February, 2017

as discriminatory and impugned communications of transfers.

7. Respondent Nos.4 and 5 fled their afdavit in reply

contending therein that Government Resolution dated 27 th

February, 2017 does not apply to petitioner. Vide Government

Resolution dated 15th April, 2017, it is provided that if any

employee/teacher has any grievance against the orders of

transfer or any other grievance, it should be agitated before

respective Divisional Commissioner of the Revenue Division.

Petitioner has not availed this alternative efcacious remedy and

{5} WP 5894 OF 2018

for this reason also this petition is not maintainable. This

resolution is not applicable to petitioner as her husband is a

practicing Advocate in this Court.

8. Heard Shri D.R.Shelke, learned counsel for the petitioner

and Smt.M.A.Deshpande, learned AGP for respondent Nos.1 to 3

State. Also heard Shri S.B.Gute Patil, learned counsel for

respondent Nos.4 and 5.

9. Shri Shelke, learned counsel for the petitioner submitted

that Government Resolution dated 27th February, 2017 has

made classifcation between employees viz. (i) Zilla Parishad

employees, whose spouses are in service of Central/State

Government, in Zilla Parishad, in Autonomous Bodies and in

Government Recognized Institutions, and (ii) Zilla Parishad

employees, whose spouses are in private service or engaged in

any profession. There is no intelligible differentia for this

classifcation. Zilla Parishad employees whose spouses are in

Government service have been given beneft of this policy

whereas Zilla Parishad employees, whose spouses are in private

service or profession are excluded from the purview of

Government Resolution dated 27th February, 2017. There is no

rational for denying beneft of 'Husband Wife Aggregation Policy'

to the Zilla Parishad employees, whose spouses are engaged in

{6} WP 5894 OF 2018

private service or in profession. He submitted that this

classifcation has no nexus with the object sought to be

achieved. This policy was implemented to enable husband and

wife to enjoy family life and to enable them to take care of their

children. He argued that employees covered in class (ii) are also

entitled to have family life and are also required to take care of

their children. There is no intelligible differentia for creating

these two classes. This resolution is an arbitrary exercise of

power and therefore, needs to be struck down. He argued that

it is the fundamental right of the petitioner to choose a life

partner. By inserting such a provision, the Government has

made it clear that if any employee chooses a partner serving in

private sector and not in the Government or Public Undertaking

Sector, such employee would be subjected to discrimination;

thus an unreasonable restriction has been placed. He placed

reliance on the following authorities:

a) Shafn Jahan Vs. Ashokan K.M. & Ors. [AIR 2018 SC 1933].

b) Kathi Raning Rawat Vs. The State of Saurashtra [AIR 1952 SC 123].

c) AIR India Vs. Nergesh Meerza and Ors. [AIR 1981 SC 1829].

d) Rohit Manohar Joshi and Ors. Vs. Tree Authority and Ors.

[MANU/MH/1111/2018].

                                    {7}               WP 5894 OF 2018


 e)       Public Service Commission, Uttaranchal Vs.  Jagdish

Chandra Singh Bora & Ors. [2014 (3) SCALE 380].

f) Kalpana Mehta and Ors. Vs. Union of India (UOI) and Ors.

[(2018) 7 SCC 1].

g) Minerva Mills Ltd. and Others Vs. Union of India and Others [(1980) 3 SCC 625].

h) Sri Srinivasa Theatre and Others Vs. Government of Tamil Nadu and Others [(1992) 2 SCC 643].

i) Motor General Traders and Ors. Vs. State of Andhra Pradesh and Ors. [(1984) 1 SCC 222].

j) Indian Hotel and Restaurant Association (AHAR) and Ors.

Vs. The State of Maharashtra and Ors. [2019 (1) SCALE 433].

10. Smt.Deshpande, learned AGP for the respondent Nos.1 to 3

submitted that nature of job of employees in private sector, their

service conditions, rules and regulations are fundamentally

different from the employees involved in the Government sector.

She submitted that the Government has framed its policy

keeping in view its employees. The Government cannot exercise

any control over private sector. If contention of the petitioner is

accepted, a fall out of it would be that petitioner will never be

transferred outside Aurangabad as her husband is a practicing

Advocate at Aurangabad. Spouse of any employee in private

sector will not be during his or her life time be subjected to

transfer beyond 30 kms. from Aurangabad having regard to

{8} WP 5894 OF 2018

the fact that spouse of the Zilla Parishad employee is

working in private sector. For this reason petitioner cannot be

given the beneft of "Husband Wife Aggregation Policy". She has,

therefore, prayed for dismissal of the petition.

11. It is well settled that Article 14 forbids class legislation. It

however does not forbid reasonable classifcation for the

purposes of the legislation. To pass the test of permissible

classifcation, two conditions have to be satisfed viz. (i) that the

classifcation must be founded on a intelligible differentia, which

distinguishes persons or things that are grouped together from

others left out of the group, and (ii) that differentia must have a

rational relation to the object sought to be achieved by the Act.

There has to be a nexus between the basis of classifcation and

object of the Act.

12. In the case of Shafi Jahai Vs. Asokai K.M. aid Ors. [AIR

2018 SC 1933] it is held thus:

"The right to marry a person of one's choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable."

{9} WP 5894 OF 2018

13. In the case of Kathi Raiiig Rawat Vs. The State of

Saurashtra [AIR 1952 SC 123] it has been held thus:

"It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classifcation for the purposes of legislation. In order, however, to pass the test of permissible classifcation, two conditions must be fulflled, namely (i) that the classifcation must be rounded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that differentia must have a rational relation to the object sought to be achieved by the Act. What is necessary is that there must be a nexus between the basis of classifcation and the object of the Act."

14. In the case of AIR Iidia Vs. Nergesh Meerza aid Ors. [AIR

1981 SC 1829] it has been held thus:

"27. In order to appreciate the arguments of the parties on this point it may be necessary to refer to the law on the subject which is now well settled by a long course of decisions of this Court. It is undisputed that what Article 14 prohibits is hostile discrimination and not reasonable classifcation. In other words, if equals and un-equals are differently tested, no discrimination at all occurs so as to amount to an infraction of Article 14 of the Constitution. A fortiori if equals or persons similarly circumstanced are differently treated, discrimination results so as to attract the provisions of Article 14.

{10} WP 5894 OF 2018

28. In our opinion, therefore, the inescapable conclusion that follows is that if there are two separate and different classes having different conditions of service and different incidents, the question of discrimination does not arise. On the other hand, if among the members of the same class, discriminatory treatment is meted out to one against the other, Article 14 is doubtless attracted."

15. In the case of Rohit Maiohar Joshi aid Ors. Vs. Tree

Authority aid Ors. [MANU/MH/1111/2018] it has been held that

"when a discretion is conferred on an authority which is absolute,

uncontrolled and without any guidelines, the exercise of such

powers can easily degenerate into arbitrariness".

16. In the case of Public Service Commissioi, Uttaraichal Vs.

Jagdish Chaidra Siigh Bora aid Ors. [2014 (3) SCALE 380] it

has been held that "sub-classifcation within the class would

have no nexus with the object sought to be achieved and that to

be a breach of Article 14 of the Constitution of India."

17. In the case of Kalpaia Mehta aid Ors. Vs. Uiioi of Iidia

(UOI) aid Ors. [(2018) 7 SCC 1] it has been held as under:

"32. Recently, in Ceisus Commissioier aid ors. v. R. Krishiamurthy MANU/SC/0999/2014 : (2015) 2 SCC 796, the Court, after referring to Premium Graiites aid aiother v. State of T.N. aid Ors. MANU/SC/0466/1994 : (1994) 2

{11} WP 5894 OF 2018

SCC 691, M.P. Oil Extractioi aid aiother v. State of M.P. aid Ors. MANU/SC/1302/1997 : (1997) 7 SCC 592, State of Madhya Pradesh v. Narmada Bachao Aidolai aid Air. MANU/SC/0599/2011 : (2011) 7 SCC 639 and State of Puijab aid others v. Ram Lubhaya Bagga aid Ors. MANU/SC/0156/1998 : (1998) 4 SCC 117, held:

From the aforesaid pronouncement of law, it is clear as noon day that it is not within the domain of the courts to embark upon an enquiry as to whether a particular public policy is wise and acceptable or whether a better policy could be evolved. The court can only interfere if the policy framed is absolutely capricious or not informed by reasons or totally arbitrary and founded ipse dixit offending the basic requirement of Article 14 of the Constitution. In certain matters, as often said, there can be opinions and opinions but the court is not expected to sit as an appellate authority on an opinion."

18. In the case of Miierva Mills Ltd. Aid Others Vs. Uiioi of

Iidia aid Others [(1980) 3 SCC 625] it has been held that

"Directive Principles of State Policy cannot have precedence over

the fundamental rights and both need to construe

harmoniously."

19. In the case of Sri Sriiivasa Theatre aid Others Vs.

Goverimeit of Tamil Nadu aid Others [(1992) 2 SCC 643] it

has been held that "Equality before law is a dynamic concept

having many facets. One facet - the most commonly

{12} WP 5894 OF 2018

acknowledged is that there shall be no previleged person or

class and that none shall be above law. A facet which is of

immediate relevance herein is the obligation upon the State to

bring about, through the machinery of law, a more equal society

envisaged by the Preamble and Part IV of our Constitution."

20. In the case of Motor Geieral Traders aid Ors. Vs. State

of Aidhra Pradesh aid Ors. [(1984) 1 SCC 222] it has been

held that "what was once a non-discriminatory piece of

legislation may in course of time become discriminatory and be

exposed to a successful challenge on the ground that it violated

Article 14 of the Constitution".

21. In the case of Iidiai Hotel aid Restaurait Associatioi

(AHAR) aid Ors. Vs. The State of Maharashtra aid Ors. [2019

(1) SCALE 433] it has been held that "the provision that is

arbitrary and irrational which had no nexus with the purpose to

achieve is unconstitutional and needs to be struck down."

22. On these settled principles, it will have to be seen whether

Government Resolution dated 27th February, 2017 creates or

results in discrimination.

23. Relevant portion of the said resolution is extracted below

for the facility of reference:

                                            {13}               WP 5894 OF 2018




     ß¼9½ fo'ks"k laoxZ f'k{kd Hkkx&2
             irh&iRuh          ,df=dj.k    ¼tj    l/;k      nks?kkaP;k    fu;qDrhps

fBdk.k ,desdkaiklwu 30fd-eh- is{kk tkLr varjkoj vlY;kl R;akuk fo'ks"k laoxZ f'k{kdkapk ntkZ izkIr gksbZy½ v½ irh iRuh nks?ksgh ftYgk ifj"kn deZpkjh vlrhy rj] c½ irh iRuh nks?kkaiSdh ,d ftYgk ifj"kn deZpkjh o nqljk jkT; 'kkldh;

deZpkjh vlsy rj] d½ irh iRuh nks?kkaiSdh ,d ftYgk ifj"kn deZpkjh o nqljk dsanz 'kkldh;

deZpkjh vlsy rj] M½ irh iRuh nks?kkaiSdh ,d ftYgk ifj"kn deZpkjh o nqljk jkT; 'kklukP;k Lok;Rr laLFkspk deZpkjh vlsy rj] mnk- [email protected]] b½ irh iRuh nks?kkaiSdh ,d ftYgk ifj"kn deZpkjh o nqljk jkT; vFkok dsanz 'kklukP;k lkoZtfud midzekrhy deZpkjh] bZ½ irh iRuh nks?kkaiSdh ,d ftYgk ifj"kn deZpkjh o nqljk 'kklu ekU;rk izkIr laLFksrhy deZpkjh vlsy rj]Þ

24. This resolution states that husband and wife are entitled to

aggregation i.e. they should be posted within a radius of 30 kms

from each other provided (a) both husband and wife are Zilla

Parishad employees (b) one of the spouses is a Zilla Parishad

employee and the other one is a State Government employee (c)

one of the spouses is a Zilla Parishad employee and the other

one is a Central Government employee (d) one of the spouses is

a Zilla Parishad employee and the other one is an employee of

Autonomous Bodies such as Corporation/Municipality (e) one of

the spouses is a Zilla Parishad employee and the other one is an

{14} WP 5894 OF 2018

employee of the State or Central Government Public Sector

Undertakings (f) one of the spouses is a Zilla Parishad employee

and the other one is an employee of any Government Recognized

Institution.

25. Admittedly, petitioner is an employee of Zilla Parishad,

Aurangabad. She is an Assistant Teacher in a School in Zilla

Parishad, Aurangabad. Petitioner has no where made it clear as

to which profession her husband practices at Aurangabad. In the

afdavit in reply of respondent Nos.4 and 5, it is stated that

husband of petitioner is a practicing Advocate in this Court. This

fact has not been denied by fling rejoinder afdavit. Infact

petitioner has annexed Identity Card of her husband which shows

that her husband is a practicing Advocate.

26. Extract of Government Resolution dated 27th February,

2017 which is germane for this petition has been mentioned

above. It indicates that employees working in private sector or

engaged in profession are not covered by this resolution. In

short, this resolution does not extend the beneft to employees in

private sector or persons engaged in profession.

27. From the Government Resolution dated 27 th February, 2017

it is evident that the Government has framed norms for the

{15} WP 5894 OF 2018

transfer of its employees over whom it has control. The

Government can exercise control over the employees working in

various organs of the Government. This cannot be said about

private sector and those under self employment. Private sector

has its own rules and regulations, has its own rules of

recruitment and therefore, the Government cannot exercise any

control over private sector. Private sector or self employed are a

class by themselves. Government policies in regard to its

employees cannot be implemented in private sector. In the case

at hand, beneft of couple convenience is extended by the

Government to Zilla Parishad employees, whose spouses are

working in the Government sector or the organs of the

Government sector. By its peculiar nature, such policy cannot be

implemented in private sector. Both sectors are fundamentally

different in nature of work, nature of duties, rules and

regulations. Service conditions of private sector are different. In

some private companies, job is non-transferable whereas in

some private companies, job is transferable and some times

transfers are effected outside the State of Maharashtra. In such

a situation, if job of a person working in private company is non-

transferable, in no case his spouse working in Zilla Parishad

would be transferred outside the District headquarter, in the case

at hand, outside Aurangabad. The policy of the Government

{16} WP 5894 OF 2018

shows that a couple can be adjusted within a distance of 30 kms.

It is not necessary that it should be within a radius of 30 kms.

from the district place. Only condition is that they should be

accommodated within a distance of 30 kms. In a case where the

spouse of the Zilla Parishad employee working in private sector is

transferred outside Maharashtra, such a policy cannot be

implemented and it is unlikely for the Zilla Parishad to transfer

him/her to the place of the spouse outside Maharashtra.

Therefore, there are two separate and different classes having

different conditions of services and incidents. As such, Zilla

Parishad employees having a spouse working in private sector or

in private profession forms a different class having different

conditions of service and different incidents. Had there been

discrimination between the same class, Article 14 could have

been invoked. But in the case at hand, both the classes are

different and mutually exclusive.

28. In the case of AIR Iidia Vs. Nergesh Meerza aid Ors.

(supra) it has been held that if there are two separate and

different classes having different conditions of service and

different incidents, the question of discrimination does not arise.

In the case at hand also the conditions of service and incidents in

private sector are fundamentally different from the Government

sector. Therefore, it cannot be said that there is discrimination.

{17} WP 5894 OF 2018

29. Executive has the power to frame policy. Only rider is that

it should stand the test of reasonableness. Court would not

direct the Executive to formulate a policy just because it thinks

that some other policy would be a better one. The scope of

judicial review would be in limited campus. For the reasons

discussed above, the impugned policy does not sound to be

arbitrary, unreasonable or irrational.

30. In view of the discussions made above, we do not fnd that

the policy is arbitrary, unreasonable or irrational. Therefore, for

the reasons set out herein above, we fnd no substance in the

petition.

31. Hence, writ petition stands dismissed. Rule stands

discharged. No cost.

          ( M.G.SEWLIKAR )                   ( UJJAL BHUYAN )
               JUDGE                               JUDGE

 SPT