Gujarat High Court
Jayshriben Jayshankarbhai ... vs State Of Gujarat on 14 December, 2022
Bench: A.S. Supehia
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 24673 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 14219 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 24318 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 11973 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 12933 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 20132 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 22907 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
JAYSHRIBEN JAYSHANKARBHAI BARAIYA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR. EKRAMA H QURESHI(7000) for the Petitioner(s) No. 1
MS AQBA H QURESHI(10790) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
==========================================================
CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : ___/12/2022
CAV JUDGMENT
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
1. Since a common issue and facts are involved
in the captioned writ petitions, the same are
heard and decided finally.
FACTS AND ISSUES:
2. In all these writ petitions, the petitioners,
who are appointed as teachers, are seeking intra-
district (inter-taluka) transfers. The
petitioners have also prayed for quashing and
setting aside the condition Nos.3 and 4 of the
Government Resolution dated 21.01.2014, which
prohibits intra-taluka transfers of the teachers
till the period of ten years. Some of the
petitioners have also filled-up the bonds in view
of their appointment orders.
3. It is the case of the petitioners that they
are being denied the intra-district transfer from
one taluka to another in view of the provisions
of Government Resolution dated 01.04.2022, even
after completion of more than 5 years of service,
more particularly, Clause-4 of Chapter-G, and
submitted that the petitioners are being
discriminated in view of the said provisions,
which allows inter-district transfer, after
completion of 5 years of service, but does not
allow inter-taluka transfer.
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
SUBMISSIONS:
4. Learned advocates appearing for the
respective parties have submitted that though the
appointment of the petitioners are governed by
the conditions mentioned therein, which prohibits
them from seeking any kind of transfer either
from one taluka to another or one district to
another district till the period of ten years of
service, as per the provisions of Government
Resolution dated 21.02.2014, however, it is
submitted that in view of the subsequent
Government Resolution dated 01.04.2022, more
particularly Chapter-G, Clause-4, such
petitioners would be entitled to intra-district
transfer from one taluka to another, after
completion of 5 years.
4.1 Learned advocate Mr.Qureshi appearing for few
of the petitioners has submitted that assuming
that bond is given by such teachers, the same
would be in form of contract and in view of the
subsequent action of the respondents in framing
new condition in the policy dated 01.04.2022, the
conditions of appointment and the bond which is
filled-in by the petitioners at the time of
appointment will get diluted.
4.2 Learned advocate Mr.Qureshi has placed
reliance on the judgements of the Apex Court in
the cases of Sushila Devi Versus Hari Singh, 1971
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
2 S.C.C. 288, Prabodh Verma Versus State Of Uttar
Pradesh, AIR 1985 SC 167, S.Seshachalam Versus
S.C.C. 72 and also on the decision of the Delhi
High Court in the case of Brijeshkumar Verma Vs.
Aurangjeb & Anr., 2018 A.C.J. 2349.
4.3 It is also contended by the learned Advocates
appearing for the respective petitioners that the
respondent authorities cannot create the class
within the class and teachers like the
petitioners, who have completed 5 years of
service, are entitled to transfer from one taluka
to another within district since as per the
Government Resolution dated 01.04.2022, more
particularly Chapter-G Clause-4, the respondent
authorities have permitted inter-district
transfer in case of those teachers, who have
completed 5 years of service.
4.4 It is submitted that the petitioners, who are
appointed on bond would remain in the same taluka
for 10 years, which would be contrary to the
subsequent policy dated 01.04.2022. It is also
submitted that the aforesaid conditions, which
are incorporated in their appointment orders and
bonds, are incorporated in view of the Government
Resolution dated 21.01.2014, more particularly
Clauses 3 and 4 and hence, the aforesaid
conditions are required to be quashed and set
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
aside in view of the subsequent Government
Resolution dated 01.04.2022. They have further
submitted that the teachers, who have entered
into the bonds or appointed with such conditions
cannot be discriminated only because they have
entered into such bonds and even the junior
teachers are allowed to participate in the
transfer camps for intra-district transfer and
hence, gross injustice is meted out to the class
of the petitioners, who have been appointed with
the conditions mentioned as per the provision of
the Government Resolution dated 21.01.2014. It is
submitted that though the petitioners are
entitled for transfer on the ground that their
spouses are serving nearby their talukas despite
rendering more than 5 years of service, their
cases are not considered for transfer from one
taluka to another. Thus, it is submitted that the
provisions of the Government Resolution dated
21.01.2014, more particularly Clauses 3 and 4,
which prohibit inter-district transfer may be set
aside and also to declare Clause-4 of Chapter-G
of the Government Resolution dated 01.04.2022 as
violative of Articles 14 and 16 of the
Constitution of India and the respondents may be
directed to allow the petitioners to participate
in the camp for intra-district transfer, after
completion of 5 years of service.
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
5. In response to the aforesaid submissions,
learned AGP has submitted that all the teachers
are bound by the conditions of their appointment
orders as well as the bonds filled up by them and
they cannot seek transfer from one taluka to
another as a matter of right. He has submitted
that the issue is squarely covered by the
judgement dated 08.03.2022 passed in Special
Civil Application No.3210 of 2022 and allied
matters as well as the order dated 09.11.2022
passed in Special Civil Application No.22254 of
2022, which has been confirmed by the Division
Bench of this Court vide order dated 29.11.2022
passed in Letters Patent Appeal No.1471 of 2022.
He has submitted that the State Government in its
wisdom has framed a new policy vide Government
Resolution dated 01.04.2022 regulating the
transfer of teachers in the entire State and it
was decided that those teachers, who have
completed more than 5 years in one district, are
entitled to file appropriate application seeking
transfer to another district as per the provision
of Clause-4 of Chapter-G. It is submitted that
the said provision is applicable to those, who
seek transfer from district to district and not
from taluka to taluka within district since the
teachers, who are already working within the
district, will not be affected as they are
working within district. It is submitted that the
provision is incorporated looking to the interest
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
of students and the teachers, and the discretion
vests in the State Government to fill-up the
vacancies of the schools. It is submitted that
the administration has noticed that the teachers
do not like to go for posting in remote village
in remote taluka and hence, the conditions of
appointment orders mention that such teachers
will not seek transfer till 10 years of service
and accordingly, the bonds were also obtained
from the teachers. Learned AGP has placed
reliance on the judgement of the Apex Court in
the case of State of Jharkhand Versus Ashok Kumar
Dangi, 2011 (13) S.C.C. 383 and has requested
that since the transfer of the petitioners is a
policy decision, the same may not be interfered
with.
6. Heard the learned advocates for the
respective parties and also perused the documents
as pointed out by them.
CONCLUSION
7. All the petitioners are appointed to the post
of teachers. The appointment orders of the
petitioners reveal that they would not be
entitled to seek transfer to another district as
well as to another taluka for a period of 10
years. Accordingly, some of the petitioners have
also filled-up bonds. Thus, they are bound by the
conditions, as incorporated in their appointment
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
orders. In this regard the State Government has
issued the Government Resolution dated 21.01.2014
more particularly Clauses 3 and 4 are
incorporated as under (translated from Gujarati):
"3) The candidates desire the appointment on
these posts shall have to serve for ten years in
the same taluka where they are appointed by the
District Education Committee. This condition will
be required to mention clearly in the notification
of the recruitment of the Vidhyasahayaks and in
the appointment order.
4) The concerned Vidhyasahayak / Teacher shall
not demand for the transfer to other taluka or
Inter District Transfer for 10 (Ten) years from
the date of appointment pursuant to the Resolution
No. PRE/11/2012/ 314776/K dated 23/05/2012 and
also subsequent resolutions issued from time to
time by the Education Department ."
8. Thus, if Clauses 3 and 4 of the Government
Resolution dated 21.04.2014 is read in
juxtaposition with the conditions mentioned in
the appointment orders of the petitioners, the
same clarify that the petitioners cannot claim
transfer either from one district to another
district or from one taluka to another taluka
till the completion of 10 years of service. It is
also mentioned that they will be governed by the
provision of the Government Resolution dated
23.05.2012 and also the subsequent resolutions,
which may be issued in future by the Education
Department. The same condition is also imposed in
their appointment orders. Thus, having accepted
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
the the appointment orders bearing such condition
of applicability of subsequent resolutions to
them, they are estopped from challenging the
conditions of the G.R. dated 21.04.2014 and also
Clause-4 of Chapter-G of the Resolution dated
01.04.2022. The petitioners are beneficiary of
the appointment orders, and are under an
obligation to accept all the norms of the policy
decision introduced by the State Government from
time to time.
9. The case of the petitioners hinges on Clause-
4 of Chapter-G of the Government Resolution dated
01.04.2022, which is subsequently introduced by
the State Government regulating the transfers of
the teachers however, it is pertinent to note
that the provision of the Government Resolution
dated 21.01.2014 are kept intact and they are not
modified in any manner. The translated provision
of Clause-4 of Chapter-G of the Government
Resolution dated 01.04.2022 reads as under:
"As per the provisions contained in reference
shown at Sr. No.8 and 14, the Vidhyasahayaks,
who were appointed with condition to work for 10
years in the same Taluka, the said condition is
modified and thus, the Vidhyasahayaks, who have
completed 5 years of service, after deducting
unpaid leaves, shall be entitled to make
application for district transfer and also for
district mutual transfer."
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
10. A plain and simple reading of Clause-4 of
Chapter-G of the Government Resolution dated
01.04.2022 reveals that the same permits inter-
district transfer and not intra-district
transfer, after completion of 5 years of service
by a teacher. The State Government in its wisdom,
after looking to the administrative exigencies,
have excluded the class of the petitioners in
claiming transfer from one taluka to another
taluka within district.
11. The petitioners have also sought modification
of the Government Resolution dated 01.04.2022. It
is a case of the petitioners that though the
Government Resolution dated 01.04.2022, more
particularly Clause-4 of Chapter-G, provides for
inter-district transfer, the same does not
provide for taluka transfers within a district
and the same is required to be modified. This
Court is of the considered opinion that such a
request or prayer made by the petitioners cannot
be entertained because the State Government and
the State authorities in their wisdom have framed
such policies, looking to the administrative
exigencies. The policy provides for inter-
district transfer and not transfer within the
taluka within the district in those cases of
teachers, who have been appointed for a period of
ten years. This Court, while exercising its power
under Article 226 of the Constitution of India
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
cannot further introduce condition in the
Government Resolution dated 01.04.2022, more
particularly Clause-4 of Chapter-G for providing
a transfer from taluka to taluka within the
district for those teachers, who have been
appointed for a period of ten years. It is also
not disputed that the case of the petitioners are
governed by the Government Resolution dated
21.01.2014, which is in existence and not
modified or rescinded. The Coordinate Bench,
after considering the provisions of Government
Resolution dated 21.01.2014 in the judgment dated
08.03.2022 passed in Special Civil Application
No.3210 of 2022 and allied matters has held as
under:
"15. Having considered the submissions made by the
learned counsel for the respective parties, what needs
to be seen is the stand of the State in context of the
resolutions issued by the State from time to time.
Prior to the resolution dated 30.08.2017, the State had
framed a policy decision by a resolution of 21.01.2014
which is on record of Special Civil Application No.3210
of 2022. Reading of the resolution indicates that the
State found that in several Talukas in the primary
sections of Classes 1 to 5, there was a deficit of
teachers. This was adversely affecting the students'
education. In order to maintain and not to deprive the
students of the education in those districts and the
2000 vacancies that were found to have been existing in
those districts for the academic year 2013-14, a
decision was taken to recruit 2000 Vidhya Sahayaks
subject to certain conditions. Conditions no.3 and 4 of
the resolution stipulated that as and when an incumbent
is appointed in this Taluka, he would continue to serve
the Taluka for a period of 10 years. That on the
appointment, the concerned incumbent would not ask for
a transfer outside the Taluka. Similar resolution was
passed on 23.09.2014 in context of 1300 vacancies for
the academic year 2014-15 reiterating similar
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
conditions. In the year 2017, on 30.08.2017 for the
districts of Chhota Udaipur, Kutch and Devbhumi Dwarka,
where the petitioners come from, such a resolution was
passed for recruitment in the academic year 2017-18 for
1300 vacancies that were found to be in the concerned
Talukas. The conditions of 10 years embargo on
continuing in the districts, Taluka school and not
requesting for transfer was reiterated.
16. Appointment orders are on record of the petitioners
where with their open eyes the petitioners have
accepted these appointments. A sample appointment order
dated 13.10.2017 filed in the petition would indicate
that the petitioners when appointed accepted by virtue
of the condition nos.2 and 3 in the orders that they
will continue to serve the Taluka for the period of 10
years. That they will not ask for moving out for Taluka
on transfer. In accordance with the resolution dated
22.03.2017, they gave a bond of Rs.3 lakhs as
stipulated in condition no.4 of their appointment
orders.
17. Having accepted the appointments to work in the
Talukas where teachers were needed, the petitioners
bound themselves to be continued in the Taluka schools
at the relevant point of time for a period of 10 years
from the date of their appointments.
18. Reliance placed on the resolution dated 22.03.2017
and to submit that the petitioners be relieved of their
obligation to serve for a period of 10 years, inasmuch
as they would be willing to pay an amount of Rs.3 lakhs
in case where teachers have completely less than three
years of service and in cases of having completed more
than four years of service, that condition not being
applicable and they be relieved is a misconceived
submission. From the resolutions of 2014 which are
reiterated in the resolution of 30.08.2017 pursuant to
which the petitioners were appointed is clearly made a
condition of their appointment that they will continue
to serve for a Taluka for a period of 10 years and not
claim transfer. The argument of Mr.Chudasama that what
they are claiming is a benefit of fresh recruitment and
not transfer is also misconceived. The effect of a
fresh recruitment and in the event of the petitioners
being selected, would indicate that the petitioners if
selected will move out of the districts in which they
were appointed. This would frustrate the conditions of
the resolution and the appointment orders which they
with their open eyes accepted. The petitioners are
bound by the conditions of the resolution dated
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
30.08.2017 and the conditions in the appointment order.
They cannot now turn around and say that having
completed more than 3 years, in such cases they be
relieved of their obligation to serve the district or
in case where they have completed less than three
years, they are willing to pay an amount of Rs.3 lakhs.
Such a stand would frustrate the very object for which
the resolutions of 2014 and 2017 pursuant to which the
petitioners were appointed were enacted. The policy
pursuant to which the petitioners have been appointed
was with an object to see that in the district where
the teachers do not opt for transfer and who face
shortage of teachers, teachers be appointed with a
condition that they may continue to serve such a
district for a period of 10 years. That policy is also
not a subject matter of challenge in these petitions."
12. This Court has no reason to deviate from the
observations made by the Coordinate Bench. This
Court has held that having accepted the
appointments to work in the talukas where
teachers were needed, the petitioners bound
themselves to be continued in the taluka schools
at the relevant point of time for a period of 10
years from the date of their appointments. It is
also observed that the policy, pursuant to which
the petitioners have been appointed, was with an
object to see that in the district, where the
teachers do not opt for transfer and who face
shortage of teachers, teachers can be appointed
with a condition that they may continue to serve
such a district for a period of 10 years. Thus,
all the petitioners are bound by these
conditions, which are envisaged in their
appointment orders and also Government Resolution
dated 21.01.2014.
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
13. The order dated 09.11.2022 passed in Special
Civil Application No.22254 of 2022, which was
passed by placing reliance on the judgment dated
08.03.2022 of the Coordinate Bench was further
subject matter of challenge before the Division
Bench of this Court in Letters Patent Appeal
No.1471 of 2022. The Division Bench, by the order
dated 29.11.2022 has dismissed the LPA and has
observed thus:
"4. We have heard learned advocate appearing for
the appellant. The Resolution dated 01.04.2022,
which has been relied upon and particularly
Clause-4 of Chapter-G is concerned, it relates to
intra district transfer and not intra taluka
transfer.
5. It is an undisputed fact that appellants were
appointed as Vidhyasahayaks initially on
30.06.2014 at Khedbrahma Taluka, however,
subsequent to re-constitution of Poshina Taluka,
which is also a part of Sabarkantha District, the
appellants were transferred to said taluka namely
Poshina Taluka in the year-2019 and they continued
to work as Vidyasahayaks.
6. Submission made by learned advocate appearing
for the appellants cannot be accepted to read the
intra district transfer as intra taluka transfer,
which has been rightly observed by the learned
Single Judge. Hence, we do not find any reason to
interfere with the order passed by learned Single
Judge. Thus, present appeal stands dismissed."
14. Thus, the cases of the petitioners seeking
intra-district transfer from one taluka to
another taluka does not merit acceptance in view
of the policy decision of the State Government.
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
The petitioners are chained by the service
conditions, as envisaged in their appointment
orders as well as bonds filled-up by them and
they cannot take shelter of provision of Clause-
4, Chapter-G of the Government Resolution dated
01.04.2022 in parity of the teachers seeking
inter-district transfer from one district to
another district.
15. The petitioners, after having obtained the
benefits of their appointment orders and the
Government Resolution dated 21.01.2014 cannot now
take volte face and seek transfer from one taluka
to another taluka within district in view of the
subsequent Government Resolution dated 01.04.2022
in wake of the fact that the State authorities
have not yet revoked the Government Resolution
dated 21.01.2014, hence they are under an
obligation to abide with the conditions of
appointment orders/ bonds and the provisions of
Government Resolution dated 21.01.2014 as well as
the conditions envisaged in their appointment
orders. Merely, because they have to work in the
same taluka within the district for ten years as
per their appointment, cannot be a valid ground
or reason to set aside the policy decision dated
21.01.2014. The provision of Clause-4, of
Chapter-G of the Government Resolution dated
01.04.2022 does not in any manner create a class
within a class. On the contrary, it regulates the
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
transfer of those teachers who are working in the
respective districts for more than 5 years and
those who wish to change the districts. The
petitioners are beneficiaries of working within a
district and are seeking transfer from one taluka
to other taluka. The petitioners are a class
within themselves. They cannot compare themselves
to the class of those teachers who are permitted
to opt for district transfer. A teacher seeking
transfer from one taluka to other taluka within a
district cannot compare his convenience or
hardship to a teacher, who is seeking transfer
one district to another. The State Government, by
framing such provision in the new policy dated
01.04.2022, has in fact tried to reduce the
hardship of those teachers who are kept in one
district for a period of 10 years by reducing
such period to 5 years. The policy permitting
such teachers for inter-district transfer after 5
years does not any manner infringe the provisions
of Article 14 or 16 of the Constitution of India.
16. I may now endevour to deal with the decisions
cited at the bar.
17. The law enunciated by the Apex Court in the
case of Sushila Devi (supra) will not apply to
the facts of the present case. The Apex Court was
dealing with the impracticable performance of the
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
contract in light of the provision of section 56
of the Contract Act. In such facts it was
observed that the supervening events, which occur
should take away the basis of the contract and it
should be of such a character that it strikes at
the root of the contract. Section 56 of the
Indian Contract Act refers to the agreement to do
an impossible act as void, which is not the
scenario presented in the writ petitions.
Similarly, in the case of Brijeshkumar Verma
(supra), the Delhi High Court was examining the
issue with regard to the interpretation of
statute of the Workmen's Compensation Act, and
the same will also not apply to the issue raised
in the present writ petitions.
18. The contention of the petitioners that their
service is purely based on contract does not
merit acceptance in light of the judgement of the
Apex Court in case of Roshanlal Tandonkunj Behari
vs. Union of India, AIR 1967 S.C. 1889. The Apex
Court has held thus:
"6......................It is 'true that the origin of government
service is contractual. There is an offer and
acceptance in every case. But once appointed to his
post or office the government servant acquires a
status and his rights and obligations are no longer
determined by consent of both parties, but by
statute or statutory rules which may be framed and
altered unilaterally by the government. In other
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
words, the legal position of a government servant is
more one of status than of contract. The hall-mark
of status is the attachment to a legal relationship
of rights and duties imposed by the public 'law and
not by mere agreement of the parties. The emolument
of the government servant and his terms of service
are governed by statute or statutory rules which may
be unilaterally altered by the government without
the consent of the employee. It is true that Art.
311 imposes constitutional restrictions upon the
power of removal granted to the President and the
governor under Art. 310. But it is obvious that the
relationship between the government and its servant
is not like an ordinary contract of service between
a master and servant. The legal relationship is
something entirely different, something in the
nature of status. It is much more than a purely
contractual relationship voluntarily entered into
between the parties. The duties of status are 'fixed
by the law and in the enforcement of these duties
society has an interest. In the language of
jurisprudence status is a condition of membership of
a group of which powers and duties are exclusively
determined by law and not by agreement between the
parties concerned. The matter is clearly stated by
Salmond and Williams on Contracts as follows:
"So we may find both contractual and status
obligations produced by the same transaction. the
one transaction may result in the creation not
only of obligations defined by the parties and so
pertaining to the sphere of contract but also and
concurrently of obligations defined by the law,
itself, and so pertaining to the sphere of
status. A contract of service between employer
and employee, while for the most part pertaining
exclusively to the sphere of contract, pertains
also to that of status so far as the law itself
has seen fit to attach to this relation
compulsory incidents, such as liability to pay
compensation for accidents. The extent to Which
the law is content to leave matters within the
domain of contract to be determined by the
exercise of the autonomous authority of the
parties themselves, or thinks fit to bring the
matter within the sphere of status by mining for
itself the contents of the relationship, is a
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
matter depending on considerations of public
policy. In such contracts as those of service the
tendency in modern times is to withdraw the
matter more and more from the domain of contract
into that of status."
(Salmond and Williams on Contracts, 2nd edition p. 12).
19. Recently, the Supreme Court, after
considering the case of Roshan Lal (supra) in the
case of State of Himachal Pradesh & Ors. vs. Raj
Kumar & Ors., JT 2022 (5) S.C. 516 has reiterated
thus:
"24. The principle laid down in Roshan Lal Tandon 's
case is followed in a number of decisions of this
Court. The following are the propositions emanating
from the principles laid down in these precedents.
(i) Except as expressly provided in the
Constitution, every person employed in the civil
service of the Union or the States holds office
during the pleasure of the President or the Governor
(Article 310). Tenure at pleasure is a
constitutional policy for rendering services under
the state for public interest and for the public
good, as explained in Tulsiram Patel (supra).
(ii) The Union and the States are empowered to make
laws and rules under Articles 309, 310 and 311 to
regulate the recruitment, conditions of service,
tenure and termination. The rights and obligations
are no longer determined by consent of the parties
but by the legal relationship of rights and duties
imposed by statute or the rules. The services, thus,
attain a status.
(iii) The hallmark of status is in the legal rights
and obligations imposed by laws that may be framed
and altered unilaterally by the Government without
the consent of the employee.
(iv) In view of the dominance of rules that govern
the relationship between the Government and its
employee, all matters concerning employment,
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
conditions of service including termination are
governed by the rules. There are no rights outside
the provision of the rules.
(v) In a recruitment by State, there is no right to
be appointed but only a right to be considered
fairly. The process of recruitment will be governed
by the rules framed for the said purpose.
(vi) Conditions of service of a public servant,
including matters of promotion and seniority are
governed by the extant rules. There are no vested
rights independent of the rules governing the
service."
20. It is articulated by the Apex Court that
though it is true that the origin of government
service is contractual, but once appointed to the
post or office, the government servant acquires a
status and his rights and obligations are no
longer determined by consent of both parties, but
by statute or statutory rules which may be framed
and altered unilaterally by the government. It is
further asserted by the Apex Court that in other
words, the legal position of a government servant
is more one of status than of contract and the
hall-mark of status is the attachment to a legal
relationship of rights and duties imposed by the
public 'law and not by mere agreement of the
parties and the emolument of the government
servant and his terms of service are governed by
statute or statutory rules which may be
unilaterally altered by the government without
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
the consent of the employee. It is also held that
the relationship more than a purely contractual
voluntarily entered into between the parties, and
the duties of status are 'fixed by the law and in
the enforcement of these duties, the society has
an interest. It is also held that conditions of
service of a public servant, including matters of
promotion and seniority are governed by the
extant rules. There are no vested rights
independent of the rules governing the service.
Thus, after the appointment of the petitioners on
the post, their service can altered unilaterally
by the state government without consent of the
petitioners as per law.
21. In the cases of Prabodh Verma (supra) and S.
Seshachalam (supra), the Apex Court has held that
the the Government is the largest employer in the
country and employment or appointment to an
office under it is a valuable right possessed by
citizens. Article 14 of the Constitution,
however, does not forbid classification. It is
further held that in order to pass the test, two
conditions have to be fulfilled, namely; - (1)
that the classification must be founded on an
intelligible differentia, which distinguishes
those that are grouped together from others; and
(2) the differentia must have a rational nexus or
relation to the object sought to be achieved by
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
the legislation. It is also held that the
classification however must not be "arbitrary,
artificial or evasive" but must be based on some
real and substantial bearing, a just and
reasonable relation to the object sought to be
achieved by the legislation. In the present case,
Clause-4 of Chapter-G does not in manner
infringes the observations made by the Apex
Court. The petitioners cannot pray for setting
aside the Government policy dated 21.01.2014 on
the basis of the subsequent policy dated
01.04.2022 since they are the beneficiary of such
policy. Clause-4 of Chapter-G only makes
provisions for those teachers, who opt for inter-
district after completion of five years. The
period of ten years is reduced to five years. The
same, in no uncertain terms violates Article 14
of the Constitution of India, and does not create
classification. The petitioners want the
provision to be implemented in intra-district
transfer i.e. from one taluka to other within a
district. The object which is sought to be
achieved by the State administration is that the
petitioners do not in any manner violate the
condition of their appointment orders and they
stick to the same taluka for the better
administration and the interest of students in
remote areas. The petitioners are not restricted
from seeking transfer from one district to other
on request or vice-versa transfer if they do not
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
want to stay in one district, however, the
generosity shown by the State administration
cannot be extended as per the desire of the
petitioners. They do not intend to work in the
same taluka and want transfer within the
district. It is well settled proposition of law
that transfer is an incidence of service, and the
petitioners cannot as per their wish, convenience
and desire insist for transfer from one taluka to
other within the district. No fundamental rights
of the petitioners are being affected or
violated, if they remain in the same taluka for
the better education of the students of remote
areas. Instead, they should be grateful to the
State administration, which has relaxed the
period from 10 years to 5 years for seeking
transfer from one district to another, despite
the conditions in their appointment orders.
22. It is trite that the Courts would be slow in
interfering in the policy matters, unless the
policy is found to be palpably discriminatory and
arbitrary. This Court would not interfere with
the policy decision when a State is in a position
to point out that there is intelligible
differentia in application of policy and that
such intelligible differentia has a nexus with
the object sought to be achieved. In the case of
Satya Dev Bhagaur vs. State of Rajasthan , 2022
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
(5) S.C.C. 314, the Apex Court has cautioned to
interfere with the policy decision unless it is
unfair, mala fide or contrary to statutory
decision. The Supreme Court has held thus:
"17 This Court in the case of Krishnan Kakkanth vs.
Government of Kerala and others, (1997) 9 SCC 495
has observed thus:
"36. To ascertain unreasonableness and
arbitrariness in the context of Article 14 of the
Constitution, it is not necessary to enter upon
any exercise for finding out the wisdom in the
policy decision of the State Government. It is
immaterial whether a better or more comprehensive
policy decision could have been taken. It is
equally immaterial if it can be demonstrated that
the policy decision is unwise and is likely to
defeat the purpose for which such decision has
been taken. Unless the policy decision is
demonstrably capricious or arbitrary and not
informed by any reason whatsoever or it suffers
from the vice of discrimination or infringes any
statute or provisions of the Constitution, the
policy decision cannot be struck down. It should
be borne in mind that except for the limited
purpose of testing a public policy in the context
of illegality and unconstitutionality, courts
should avoid "embarking on uncharted ocean of
public policy"."
18 A three - Judge bench of this Court in Sher Singh
and Others vs. Union of India and Others, (1995) 6
SCC 515 has observed thus:
"As a matter of fact the courts would be slow in
interfering with matters of government policy
except where it is shown that the decision is
unfair, mala fide or contrary to any statutory
directions."
23. In the present case, the State, in the
interest of teachers and the students who are
C/SCA/24673/2022 CAV JUDGMENT DATED: 14/12/2022
studying in remote areas, has taken a policy
decision by introducing Clause-4 of Chapter-G in
the policy dated 01.04.2022, which, in my
opinion, is neither mala fide, unfair or contrary
to any statutory directions.
24. Hence, the writ petitions fail. RULE is
discharged. There shall be no order as to costs.
Interim relief, if any, stands vacated.
25. Registry to place a copy of this judgment in
the connected matters.
Sd/-
(A. S. SUPEHIA, J)
NVMEWADA
